Regina v May

JUDGMENT 1 SPIGELMAN CJ: I invite Abadee J to give the first judgment. 2 ABADEE: This is a Crown appeal against what is said to be the leniency of a sentence imposed by her Honour Judge Tupman in the District Court at Campbelltown. 3 The respondent who is almost twenty-two years old pleaded guilty to a charge of having sexual intercourse without consent. The charge was laid under s 61 I of the Crimes Act. The maximum penalty on conviction is fourteen years penal servitude. 4 On 15 October 1998 the respondent was sentenced to a fixed term of three years penal servitude to be served by way of periodic detention and to commence on 23 October 1998. 5 The Crown appeal does not suggest any specific error on the part of her Honour in the course of sentencing the respondent. 6 The ground of appeal that has been advanced to this Court and, indeed, the sole ground of appeal is that the sentence was manifestly inadequate. 7 Section 61 I was inserted in the Crimes Act by Act No 198 with the amendment to take effect in March 1991. Parliament provided by that amendment a maximum penalty of fourteen years penal servitude for an offence under that section. The maximum penalty under the corresponding legislation previously in force was eight years penal servitude. Various other amendments relating to increasing penalties for sexual offences were made at the same time. The maximum sentence in itself reflects the public expression of the seriousness of the crime. The action in 1991 of Parliament must be taken by the Courts to have reflected community standards and it is incumbent upon the Courts to give effect to the concerns manifested by Parliament. It is to be remembered and should be remembered that non-consensual sexual intercourse of itself and without additional violence is, nevertheless, an extreme form of violence and one which the community expects will be taken very seriously by the Courts. See Regina v Hartikainen (CCA 8 June 1993 unreported). It is appropriate and worthwhile to repeat what Gleeson CJ said at p 3: "In my view, the Crown is correct when it says that his Honour failed to pay due regard to the objective seriousness of the facts of the case. It was pointed out by his Honour in his remarks on sentence that the sexual intercourse was not accompanied by additional violence of the kind that is sometimes encountered in cases of rape. However, non-consensual sexual intercourse is itself an extreme form of violence and one which the community expects will be taken very seriously by the Courts." 8 In Hartikainen, in circumstances perhaps somewhat similar in some respects to the circumstances of this case, the appeal by the Crown was an appeal against the imposition of a bond upon the accused who had pleaded guilty to a charge of rape. It was not a case where periodic detention was involved. The Court of Criminal Appeal, in allowing the Crown appeal, re-sentenced the accused to penal servitude for three years made up of a minimum term of two years and an additional term of one year. 9 The decision in Hartikainen is a decision, therefore, of some importance. It does illustrate that in the circumstances of this case that had for example, the matter come before another Judge of the District Court for sentencing purposes the outcome may have been not only different to the outcome in the instant matter, but may also have resulted in the imposition of a sentence such as was imposed by the Court of Criminal Appeal in Hartikainen. Indeed, may I add that had such a similar full time custodial sentence been imposed by another Judge in the circumstances of this case, speaking for myself, it is unlikely that this Court would have interfered with the severity of any such sentence. 10 It is also appropriate for me to observe, that in the instant case there is nothing to indicate, at least on the face of the sentencing reasons for judgment, that the Crown had drawn the sentencing Judge's attention to the decision in Hartikainen This is a matter that I regard as being of some moment. It is clear that it would be unusual if a conviction under s 61 I did not ordinarily result in a sentence of full time imprisonment. See Regina v Crisologo (1997) 99 A Crim R 178. It is important, however, to note the use of the word "ordinarily" since it accepts that there may be exceptional cases where a full time imprisonment sentence is not required. For example, in the United Kingdom in Regina v Billam [1986] 1 WLR 349 Lord Lane CJ when re-stating the principles guiding Judges in the sentencing for rape or attempted rape said at 350: "The Court emphasised in R v Robert (Hugh) [1982] 1 WLR 133 that rape is always a serious crime which calls for an immediate custodial sentence other than in wholly exceptional circumstances." [my emphasis.] 11 The point to be made is this, that, clearly, there may be exceptional circumstances which when found to exist will warrant a sentence other than a full time custodial sentence. The only part of Lord Lane's decision that I would, perhaps, have some reservation about is the use of the qualifying word "wholly". Next, it is important, in my view, that the sentence imposed should act as a public deterrent in relation to an offence of the kind that we are dealing with. The need to impose public deterrent sentences is referred to in Regina v Rushby [1977] 1 NSWLR 594. See also Regina v W H S (CCA 20 March 1995 unreported). 12 In the instant case the respondent was sentenced to a fixed term of three years to be served by way of periodic detention. It is important to remind sentencing Judges again that periodic detention does have a strong degree of leniency built into it and is outwardly less severe in its denunciation of the crime. See Regina v Hallacoglu (1992) 29 NSWLR 67 at 73 and Regina v Musumeci (CCA 30 October 1997 unreported). 13 The facts in relation to the offence are stated by her Honour in the following terms: "On the evening of 20 January 1996 the prisoner and a male friend drove to the home of the complainant who was known to them both at that stage. They travelled from there in the prisoner's vehicle to the Liverpool area. They ultimately purchased a number of bottles of high alcohol cider from a bottle shop in the Liverpool area. I note from the statement tendered by the Crown on the sentence proceedings that all three, including the prisoner and the complainant apparently, were intent on obtaining drinks with a high alcohol content because they left one bottle shop which did not stock the particular high alcohol cider which they were looking for and which they subsequently bought. They drove to the Royal National Park and spent some time in that area but moved on to the Bundeena wharf after being spoken to by a Ranger and moved on when they became aware that the Park was about to close. They consumed more alcohol in the Royal National Park and continued to consume alcohol whilst at Bundeena wharf. At the Bundeena wharf the prisoner and the complainant and their companion spent a fair while talking to each other and other people who were in the vicinity of the wharf and as I have said continuing to consume alcohol. Eventually the prisoner, the complainant and their companion returned to their parked car. The complainant fell asleep, I accept, because she was well affected by alcohol, She was sitting in the passenger seat and the prisoner was seated in the driver's seat. I accept that on at least two occasions after they returned to the car the prisoner went with the complainant to the nearby ladies toilet and in doing so he had to assist her in walking because she was intoxicated and was to an extent stumbling. I accept that he waited outside the toilet for her on these occasions and then he escorted her back to his car. I accept that he did this because he was concerned for her safety both if she were alone generally and also because of her state of intoxication. I accept that the prisoner and the complainant had known each other at this stage for about four months in a social or friendship relationship and whilst the prisoner in his evidence said that he had hoped for a more intimate relationship there was nothing to suggest that he had ever passed this view on to the complainant or that she shared any similar view with him. She seemed to have been a friend at the time who enjoyed the company of the prisoner and was prepared to talk to him about various aspects of her life as a confidante. The complainant was aged 18 at the time of these events. I accept that whilst the complainant was asleep on the passenger seat of the prisoner's car and after one of the occasions on which she had been escorted to the toilet by the prisoner and at about 2 or 3am on 21 January 1996 the prisoner whilst sitting in the driver's seat fondled her breasts both inside and outside her bra, rubbed her vagina with his fingers and inserted a finger into her vagina and then had penile/vaginal sexual intercourse with her until he ejaculated. To do this I accept that he pulled down the complainant's shorts and underpants to her ankles and also pulled down his own shorts. There is some issue on the facts as to whether or not the complainant was aware that any of this sexual activity including the penile/vaginal sexual intercourse occurred. The statement of facts tendered on behalf of the Crown indicates that some time after the complainant fell asleep on the passenger's seat of the car she awoke and experienced pain and discomfort in her genital region. She then saw that her lower clothing and underwear was down around her ankles and she then saw the accused lying outside next to the vehicle. There was no indication in the statement of facts itself that the complainant had actually been aware of any of the sexual activity occurring as it happened. In a statement which the complainant made to the police at some stage on 21 January 1996 after being examined at St George Hospital, she indicates that she was asleep. She felt a penis withdrawing from her vagina from behind, and could see that she was naked from the waist down. She indicates in this statement that she looked over her right shoulder and saw some legs and joggers but by the time she looked completely around there was no one sitting in the driver's seat but when she got out of the car she saw the prisoner lying on his stomach on the road apparently asleep". 14 The Crown complains that in the circumstances of this case her Honour did not give full weight to the objective seriousness of the offence, particularly having regard to the facts that the complainant was significantly under the influence of intoxication and also was asleep at the time the offence was committed upon her. It also says that these two particular matters were well known to the respondent at the time. 15 Her Honour specifically found that the complainant upon discovering what had occurred after the event had immediately sought assistance, had made complaint and, in fact, was taken to the Sexual Assault Unit at St George Hospital. 16 The respondent was taken from the scene after the police had become involved, to the Sutherland Police Station. He initially denied sexually interfering with the complainant and he initially denied declining to give a blood sample. Subsequently a sample of blood was ordered to be taken. It was taken and the respondent then stated that he wished to be interviewed. He was interviewed a second time and made a number of admissions in respect of the offence. It is appropriate for me to say that the appeal book reveals that there was DNA evidence in respect of vaginal and vulval swabs from the complainant and blood samples from the respondent. 17 The respondent also gave evidence. Further, in his electronic record of interview he sought to explain the circumstances under which the offence took place. His account was, in effect, that it was something that occurred on the spur of the moment, that it was something that was out of character for him. He also said or suggested that the consumption of alcohol had in some way lowered his inhibitions. 18 It was not suggested by the facts that the complainant had behaved in any manner calculated to lead the respondent to believe that she would consent to sexual intercourse. The complainant appeared at the relevant time to have been both asleep and also, perhaps, under the influence of alcohol. She had no reason to suspect that she was otherwise than in a safe or secure place at the time of the assault, with the respondent being a person that had been known to her for a number of months. To be the subject of unwanted intercourse when asleep when one is unable to say "No" and when a woman is unable to defend herself when she is least able to put up any resistance, must in itself be a matter that is both degrading and the subject of considerable indignity. 19 Her Honour found that in the circumstances of this case there were no matters of aggravation. Her Honour also specifically found that the matter was a very serious offence in which the respondent had been involved in the violation of a young complainant. 20 Her Honour also addressed the issue of deterrence. She said, quite rightly, that the court should send a message to the community that sexual violation of young women would be treated extremely seriously by the court and that the legislature had recognised such in the appropriate penalty that it imposed. 21 The Crown has submitted that in the circumstances, not only was there inadequate weight given to the objective seriousness of the facts of the case but that her Honour appeared to also place too much weight on the subjective circumstances of the respondent. Her Honour was aware that at the time of trial the respondent was aged twenty-one but, nevertheless, at the time of the commission of the offence he was a young man of eighteen years and ten months. This was a matter that her Honour clearly considered to be a matter of some weight and her Honour was entitled to consider the youth of the respondent for the purposes of the sentence. Such would in any event be relevant to the matter of public deterrence giving it its proper place. 22 Her Honour had regard to a belated plea of guilty. It is true that her Honour appears to have attached considerable weight to it. There have been submissions in respect of whether or not undue weight was given to the plea of guilty belatedly entered and whether or not her Honour's finding in relation to contrition associated with the later plea of guilty were proper findings in the circumstances. 23 I am unable to find any error in what her Honour said in relation to the belated plea of guilty. Nor am I able to discern any error in her Honour's views as to the genuineness of the respondent's contrition reflected, among other things, in the belated plea of guilty. Her Honour accepted that the offence, indeed specifically found that the offence was out of character, that the respondent's judgment had departed probably because of his own intoxication. Her Honour had regard to the fact that the respondent was a person in regular employment who appeared to have a very good supportive family and regarded the matter as being one where he had excellent rehabilitation prospects. 24 Her Honour specifically referred to the fact and found that the respondent recognised the seriousness of his conduct and was generally contrite and remorseful about his actions on the night in question. 25 The situation, therefore, seems to come down to this, being whether her Honour was entitled to find that this was one of the exceptional cases where a full time custodial sentence was not required. Her Honour, in addition, made a specific finding of fact which is not challenged by the Crown and I quote from her Honour's sentence remarks where she said: "It seems to me that there exists the unusual case on its own facts where in addition there are significant subjective facts to be taken into account where a full time custodial penalty is not called for and it seems to me that this is one of those cases." 26 Clearly, what her Honour was saying, having been earlier told by the Crown that this was a case where the ordinary rule was that a full time custodial sentence should be imposed for this type of offence, was that this was an exceptional case. I am unable to discern error in the approach of her Honour. However, before I conclude my views, let me make several other observations. 27 On any view, this was a serious case of sexual assault. I repeat what I said at the beginning, that the respondent was indeed most fortunate not to have come before, perhaps, other judges who had their attention been drawn to Hartikainen could have reached a decision totally different to the one her Honour reached and could have imposed a full time custodial sentence of the type that was ultimately imposed by the Court of Criminal Appeal in Hartikainen. 28 The other matter before I conclude my reasons for judgment is this: in the course of argument, it appeared that the respondent was "honouring in its breach" his periodic detention order. It is not for this court to take that matter into account for the purposes of the decision in the instant case. That said, it is appropriate for me to indicate to the respondent and, perhaps, he should be put on notice right here and now that if he continues to breach his periodic detention order or, alternatively, not honour the spirit of it, he runs the very serious risk of being called up for sentence in consequence of that particular attitude. I say no more, the warning is there. 29 In my view, having regard to what I have said, I would propose that the Crown appeal be dismissed. 30 SPIGELMAN CJ: I agree. 31 ADAMS J: I also agree. 32 SPIGELMAN CJ: The order of the court is that the appeal is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.