Russell v R

Russell v R - [2010] NSWCCA 248 - NSWCCA 2010 case summary — Zoe

[11]

1 CAMPBELL JA: I agree with Price J. 2 LATHAM J: I agree with Price J. 3 PRICE J: The applicant Brett Thomas Russell pleaded not guilty in the District Court to an indictment containing two counts of indecent assault contrary to s 61L Crimes Act 1900 (counts 1 and 4) and three counts of sexual intercourse without consent contrary to s 61 Crimes Act (counts 2, 3, and 5). The alleged offences occurred on 6 April 2008 and involved a single complainant. 4 After a trial before a jury, verdicts of guilty were returned to counts 1, 2, 4 and 5, but not guilty to count 3. 5 On 2 July 2009, the applicant was sentenced by Woods QC DCJ on count 1 to a fixed term of imprisonment of 18 months commencing 4 April 2009 and expiring 3 October 2010. On count 2, a fixed term of imprisonment of 7 years commencing 4 April 2009 and expiring 3 April 2016 was imposed. On Count 4, a fixed term of 18 months imprisonment commencing 4 October 2009 and expiring 3 April 2011 was imposed. On count 5, the applicant was sentenced to imprisonment with a non-parole period of 7 years commencing 4 October 2009 and expiring 3 October 2016 with a balance of term of 2 years commencing 4 October 2016 and expiring 3 October 2018. 6 As a result of partial accumulation and concurrence, the total overall sentence was 9 years 6 months commencing 4 April 2009 and expiring 3 October 2018 with a non-parole period of 7 years 6 months commencing 4 April 2009 and expiring 3 October 2016. 7 The maximum penalty for a 61 Crimes Act offence is 14 years imprisonment. A standard non-parole period of 7 years applies. The maximum penalty for a s 61L Crimes Act offence is 5 years imprisonment. No standard non-parole period is prescribed. 8 The applicant now seeks leave to appeal against the severity of the sentences imposed. Facts 9 The Judge found the following facts (ROS 1, 2 and 3): "[The applicant] is an aboriginal Australian man born on 13 December 1962. At the relevant time he was therefore forty-six years of age. The victim was a young woman…and was accordingly nineteen y ears of age. The girl was residing with her mother whom she either lived full time with, or visited from time to time, at a flat in Maroubra. This flat was next door to where the offender lived with his partner, a middle aged woman named M. The offender had not long before been released from prison and was living in a sexual relationship with his partner. That lady was a friend of the victim's mother and it was not unusual for the young female victim to drop by from time to time. She was in the habit of taking various people's dogs in the neighbourhood for a walk.

[14]

The [applicant] prevailed upon her to look up some songs for him on the computer and demanded also that she look up pornography for him. He threatened to kill her if she did not do that. As she was complying with the threat he knelt beside her and groped her sexually. He started touching her on the leg and she pushed him away. Subsequently he did it again, pulling her underwear across and inserting two fingers into her vagina. She said it hurt a lot and she cried. The incident concluded when [the applicant] heard his partner, [M], coming back." 10 During the sentencing proceedings a victim impact statement was read to the court by the victim's mother. The applicant's offending was said to have severely affected the victim's health, well-being and happiness. The victim was described as "a loving, sweet and very innocent girl before the assaults." The Judge remarked that the "young lady has been deeply disturbed by these offences. This is a conclusion which I would have reached in any event, regardless of the victim impact statement". The Judge said that the victim impact statement had not caused him to increase the sentence he otherwise would have imposed. 11 The Judge found that the offences were not planned in advance but were "opportunistic". Subjective circumstances 12 The applicant, who is of Aboriginal descent, was born in late 1962 and was 46 years old when the offences were committed. His subjective circumstances were before the Judge by way of a report from Terry Smith, a clinical psychologist. The applicant had given evidence during the trial but did not give evidence on sentence. 13 Mr Smith reported that the applicant was the third eldest of twelve children. Both his parents suffered from severe alcoholism and there was sustained violence, particularly by his father, for the first ten years of the applicant's life. 14 Between the ages of 10-15 years he spent most of his time in Boys' Homes because of repeat offending. During the ages of 12 to 18, the applicant ran riot, was on the streets and did what he wanted. He was too frightened to go home and "get bashed by dad." He estimated that he was incarcerated for three to four years of this period and that from the age of 18 he had spent eighty per cent of his time in prison. 15 The applicant started sniffing lighter fluid when aged 10. Around age 11 he commenced consuming flagons of port wine with friends and had progressed to spirits and beer by the following year. He became a binge drinker and experienced prolonged blackouts from alcohol intake. For about four years from the age of 12, he consumed marijuana in moderate quantities but subsequently became addicted to amphetamines. 16 The applicant attended La Perouse Primary School where he had severe conduct problems. He was placed at Chifley Primary School, in an activity-based specialised program for conduct-disordered children. The applicant then attended Matraville High School and left at the end of Year 7 at which time he was barely literate and numerate. 17 The applicant's employment consisted of various positions as a labourer. During his estimated 23 years in custody, he did not complete any educational courses but told the psychologist that through his own efforts, he had improved his literacy skills. He has twelve children from various relationships, three of whom are to his current partner. 18 Mr Smith described the applicant's background history as being complex and disturbing. His early years involved a dysfunctional family characterised by high levels of alcohol, violence and fear. He grew to young adulthood with "a strong sense of anti-social values, sense of being a victim, a strong sense of inadequacy and a fierce determination." Mr Smith reported that, "the adult years had been largely described as, a career offender." The applicant told Mr Smith that he was now at a point in his life where he needed to change. Mr Smith opined that the applicant's prognosis was uncertain. The issue for the applicant was, the psychologist stated, that "over time it has taken very little pressure or frustration for [the applicant] to make the wrong decisions and his re-offending seems to occur very quickly."

[15]

19 The applicant's extensive criminal history reveals prior offences of violence and dishonesty. As an adult, his convictions include robbery whilst armed, assault occasioning actual bodily harm, malicious wounding, assault, malicious injury, escape from lawful custody, stealing and break, enter and steal. For an offence of sexual intercourse without consent, he was sentenced in the District Court in May 1992 to a minimum term of imprisonment of 2 years with an additional term of 2 years. At the same time, he was sentenced to a fixed term of 1 year imprisonment for an offence of maliciously inflict grievous bodily harm. On 18 December 2001, he was sentenced at the Downing Centre Local Court for three counts of aggravated indecent assault. On each count, he received suspended sentences of 6 months imprisonment. His record includes offences of driving a motor vehicle whilst disqualified, some of which have resulted in terms of imprisonment. At the time of the present offences, the applicant was on parole for an offence of driving whilst disqualified for which he had been sentenced to imprisonment for 12 months commencing 5 December 2007 with a non-parole period of 3 months. 20 The Judge described the applicant's criminal history as being "formidable, even in this court." He went on to state that "it [was], of course, the history of violence and sexual misbehaviour on previous occasions which is most pertinent in the present case." Dealing with the appeal 21 The applicant requires an extension of time to seek leave to appeal. I accept that the applicant was not dilatory in his desire to appeal. As his solicitor explains in an affidavit, the delay arose from the consideration of whether the appeal would be against conviction as well as sentence and in fulfilling the requirement for grant of legal aid. I propose that an extension of time be granted. 22 The notice of appeal identifies ten grounds. As grounds 1 and 2 complain about manifest excess of sentence it is convenient to deal with these grounds after considering the specific issues which are raised in grounds 3 -10.

[30]

Ground 7 : The sentencing Judge erred in his setting of the effective non-parole period. 37 The applicant contended that the Judge erred in failing to identify reasons to justify his departure from the "statutory ratio". Furthermore, special circumstances should have been found as a result of the accumulation of sentence. The Judge was also said to be in error in failing to take into account in not finding special circumstances that the applicant had been "thoroughly institutionalised by the prison environment" and required a longer period on parole. 38 During the proceedings on sentence, the Judge was not asked to find special circumstances for either of the reasons advanced to this Court nor was he asked to find special circumstances at all. 39 Section 44(2) Crimes (Sentencing Procedure) Act requires that the balance of the term of the sentence must not exceed one third of the non-parole period, unless the Court decides that there are special circumstances. 40 The overall non-parole period of the sentence imposed by the Judge is 79 per cent (round figures) of the total sentence as against the statutory relationship of 75 per cent. The Judge declined to find special circumstances as is required before imposing a sentence where the balance of term is greater than one third of the non-parole period. 41 Having declined to find special circumstances, his Honour was not then obliged to give reasons for not varying the statutory relationship in s 44(2): R v Simpson (2001) 53 NSWLR 704; Musgrove v R (2007) 167 A Crim R 424. However, where the non-parole period exceeds the statutory relationship some reasons should be provided to avoid an inference that there must have been an error or oversight: Wakefield v R [2010] NSWCCA 12 per Grove J at [26]. It was said in R v Dunn [2007] NSWCCA 312 that this was especially the case where cumulation of sentence had taken place. 42 In the present case, the increase of the non-parole period above the statutory relationship could not be thought to have resulted from error or oversight. The Judge made it very clear that his intention was to set a non-parole period that was more than three-quarters of the sentence. He said so both upon determining each individual sentence and upon fixing the overall non-parole period. His Honour considered that such an overall non-parole period was "appropriate in the circumstances of the case." When the whole of the sentencing remarks are considered, I do not think that the Judge failed to give reasons for the overall non-parole period being above the statutory relationship. 43 Whether or not special circumstances are found is a matter for the discretion of a sentencing judge. For the applicant to succeed on this ground, he must show that it was not open to the Judge to reach the decision that he did: Musgrove v R per Simpson J at [24]; R v El-Hayek (2004) 144 A Crim R 90.

[41]

(vii) no threats were made immediately prior or during the commission of the offences." 60 A determination of where the subject offence lies on the scale of objective seriousness of an offence of its type is essentially one of fact and as such is reviewable in this Court only on the principles stated in House v The King (1936) 55 CLR 499; see R v Johnson [2004] NSWCCA 140; Mulato v R [2006] NSWCCA 282. The question is whether or not the determination of the offences as being in the middle of the range was open to the Judge in the circumstances of the offence: Johnson per Spigelman CJ at [34]. 61 The Judge correctly identified in the passage quoted at [57] above, that the assessment of where the offences lay on the scale of objective seriousness, was not determined solely by the form of the non-consensual intercourse: Hibberd at [56]; R v King [2009] NSWCCA 117; R v AJP (2004) 150 A Crim R 575. Other than the form of the non-consensual intercourse, which is an important consideration, relevant matters in determining where on the scale of seriousness the offences lay included the degree of violence, the physical hurt inflicted, the circumstances of humiliation and the duration of the offence: Hibberd at [56]; R v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported) at [10-11] per Mahoney JA. As was said in King at [36] what is to be considered is the type of non-consensual intercourse in all the circumstances surrounding the offence. 62 The Judge found that in committing the offence in the park at Watsons Bay (count 2) the applicant digitally penetrated the victim by the use of three fingers and had kissed or licked her vagina. The offence at his flat at Maroubra involved digital penetration by the use of two fingers (count 5). The Judge found that neither offence was planned in advance but was opportunistic. The Judge accepted the victim's evidence that the applicant repeatedly made threats of violence against her if she was to reveal what had occurred. He also found that the victim was "naïve and trusting", her person had been "violated" and that the episodes of digital penetration were "intrusive and grossly degrading". He accepted her evidence that the second sexual assault had "hurt a lot" and she had cried. Furthermore, she had been deeply disturbed by the offences. 63 The submission that no threats were made immediately prior to the commission of the offences is incorrect. The Judge found that immediately prior to the commission of counts 4 and 5 the applicant had threatened to kill the victim if she did not look up pornography for him. The threats of violence made by the applicant after the sexual assault at the park and immediately prior to the sexual assault at Maroubra were neither elements of an offence contrary to s 61 Crimes Act nor circumstances of aggravation under s 61J(2)(b) Crimes Act. The Judge was entitled to have regard to these threats when assessing the objective seriousness of the offences. Whilst it is true that the level of violence that accompanied each of the offences was low, the threatened violence was of a high order. 64 The applicant criticised the Judge's description of the episodes of digital penetration as "intrusive and grossly degrading" as being an exaggeration. It was further submitted that if the Judge had regard to the victim's intellectual level in determining the objective seriousness of the offences, he would be in error as the applicant was not charged with aggravated sexual assault contrary to s 61J Crimes Act. A circumstance of aggravation found in s 61J(2)(g) is as follows: "…the alleged victim has a cognitive impairment…" 65 During a preliminary hearing before Hosking DCJ, evidence was given that the victim's mental ability was far below the level of most 19-year-old women and was more on the level of a child of about 10 years old. Her composite IQ put her at the bottom few per cent of adults generally and below an IQ score of 70. Should the Judge have taken into account a cognitive impairment suffered by the victim, the principle in R v De Simoni (1981) 147 CLR 383 would have been infringed, as to do so would have punished the applicant for the more serious offence contrary to s 61J which carries a term of imprisonment for 20 years and a standard non-parole period of 10 years. There is nothing, however, in the sentencing remarks which suggests that the Judge had regard to her low level of mental ability and I would reject any suggestion that he did. His finding that the victim was naïve and trusting was plainly open to him. 66 As an experienced Judge who presided at the trial, he was in a far better position than this Court to assess the impact that the applicant's offending had upon the victim. It is hardly surprising, in my view, that he found the digital penetration to be "intrusive and grossly degrading". I would reject the applicant's criticism of this finding. 67 The short duration of the sexual assaults did not mitigate the objective seriousness of these offences. I explained in R v Daley [2010] NSWCCA 223 at [48]: "In R v Hibberd (2009) 194 A Crim R 1 I said at [56] that the duration of the offence was a relevant consideration in the assessment of the seriousness of an offence contrary to s 61 I Crimes Act . I wish to make it clear that the short duration of a sexual assault would not ordinarily be considered as a factor which reduces the objective seriousness of the offence. Most sexual assaults will not be prolonged as the offender will seek to avoid apprehension. On the other hand, a sexual assault of an extended duration will necessarily add to the seriousness of the offending as the suffering and the humiliation of the victim will be increased." 68 Having had the advantage of seeing and hearing the victim giving evidence during the trial, the Judge was in a strong position to assess the objective seriousness of the offences. This Court would ordinarily respect that advantage unless it appears that wrong principle has been applied, or an irrelevant consideration has been taken into account (or a relevant consideration has been overlooked) or that the finding itself simply was not open on the evidence: House v The King. I am not persuaded in all the circumstances of counts 2 and 5 that the determination of the offences being in the middle of the range was not open to the Judge. I would reject this ground of appeal.

[44]

This is relevant in the present case because [the applicant] is a strikingly handsome aboriginal man who, it would seem, has little difficulty during the limited time he is out of gaol, forming sexual relationships and fathering children, whatever be the precise number. The situation is quite extraordinary and indeed pathological. It would appear to explain much about this present case." 71 It was further argued that the Judge took into account the applicant's prior criminal convictions in determining the objective circumstances of the offences contrary to the decision in R v McNaughton [2006] NSWCCA 242. 72 The Crown argued that the remarks quoted at [69] above demonstrate that the Judge did not impermissibly incorporate into the sentences any element of preventative detention. On the contrary, the Judge had expressly referred to the limitation provided by authority that the sentence may only provide for the protection of society within the range of an appropriately proportionate sentence and not by the extension of the sentence beyond that range for the purpose of the preventative detention of an offender. Furthermore, the remarks quoted at [70] above were an observation by the Judge that the applicant's intimate relationships and the number of his children provided an explanation for the circumstances that led to the offences on the basis that the applicant had been acting in response to longstanding impulses directed (at that stage) towards the victim. 73 Whilst the protection of the community is a consideration in the sentencing of offenders, a sentence should not be increased beyond what is proportionate to the crime merely to protect the community from the risk of recidivism on the part of the offender. In Veen v R (No 2), Mason CJ, Brennan, Dawson and Toohey JJ said at 473: "It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible". 74 I would not take his Honour's remarks at [69] above, to indicate an intention to extend the sentence merely by way of preventative detention. The Judge recognised by his reference to "Veen's cases" and to the "just deserts for his criminality" that his consideration of the protection of the community was constrained by legal principle and his obligation was to impose sentences which were proportionate to the offences that the applicant had committed. Furthermore, I do not think that his reference to the applicant's "sexual relationships and fathering children" was other than to provide some explanation for the applicant's conduct. 75 There is nothing in the sentencing remarks which indicates that the applicant's prior criminal history was used by the Judge to impose a disproportionate sentence. The Judge emphasised later on in his remarks that the applicant was not being sentenced for previous offences. The Judge, in my view, gave more weight to considerations of personal deterrence and the protection of the community because of the applicant's prior offending, which was consistent with the principles settled in McNaughton. This ground of appeal has not been established.

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