Simon v R

[2013] NSWCCA 328

Court of Criminal Appeal (NSW)|2013-11-12|Before: Macfarlan JA, Latham J, Hulme J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2013-11-12

Before

Macfarlan JA, Latham J, Hulme J

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

The applicant's case 18The applicant gave evidence that on the morning of 31 October 2009 he did not follow the complainant to Museum Railway Station but went there for the purpose of catching a train to visit his mother at Campbelltown. He said that he struck up a conversation with the complainant on the train and that she gave him cause to think that she was interested in him. He alighted at Hurlstone Park Railway Station because he saw the complainant get off. He said that he there had a further conversation with the complainant during which the complainant said that her sister would be going to work and "if you're that keen, well, you'd wait". Later, after a young woman, who the applicant assumed to be the complainant's sister, left the unit block, the complainant came out onto the street and she and the applicant walked into the unit together. 19The applicant said that consensual sex then occurred and, after some time, he asked the complainant about having sex with her sister because he thought she was a virgin and he wanted to "break her in". According to the applicant, this caused the complainant to become annoyed and require him to leave. He said that he did so, taking a credit card and a piece of paper upon which the PIN for it was written. 20He agreed that CCTV footage showed him entering Hurlstone Park Railway Station at 1.39 pm. He remembered hearing ambulance or police sirens but could not remember what he did at that point. He agreed that the CCTV footage showed him throwing things down onto the railway tracks. 21The applicant's mother gave evidence that she lived in Pagewood but was, at the time, working in Campbelltown. She said that she had arranged to meet her son at Glenfield Railway Station on Saturday 31 October 2009.

[2]

EXTENSIONS OF TIME - CONVICTIONS AND SENTENCE 22The applicant was convicted on 23 December 2010. He filed a Notice of Intention to Appeal against conviction and sentence on 28 March 2011. So far as his convictions were concerned, this was well outside the period of 28 days from his convictions allowed by s 10(1)(a) of the Criminal Appeal Act 1912. The papers before the Court do not disclose the date upon which the Notice of Appeal concerning the convictions was lodged but this appears to have occurred in April 2013, long after the expiration of the period of six months for which a (duly filed) Notice of Intention to Appeal is to have effect pursuant to r 3A of the Criminal Appeal Rules. If a Notice of Intention to Appeal is not filed within 28 days of the conviction a Notice of Appeal or Notice of Application for Leave to Appeal must be filed within three months after the conviction or sentence (Criminal Appeal Rules r 3B(1)(b)). This did not occur. Section 10(1)(b) gives the Court power to extend the time for filing a Notice of Intention to Appeal and under r 3B(2), the Court may extend the time for the filing of a Notice of Appeal or Notice of Application for Leave to Appeal. 23The specification of time limits for the pursuit of appeals is based upon the principle of finality, described by the plurality in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at [45] as "a fundamental and pervading tenet of the judicial system". In considering whether an extension of time should be granted, it is not only the interests of the applicant for leave that must be considered. Regard must be had to the interests of the Crown (representing the community) and to the administration of justice generally (Darwiche v R [2011] NSWCCA 62 at [39]). The longer the delay, the greater will be the justified expectation of the community, witnesses, victims and families of victims that the criminal proceedings are over (ibid at [38]). In considering whether to grant an extension, the Court has regard to the applicant's prospects of success on an appeal but should do so in a more summary fashion than if the applicant had brought an appeal or application for leave to appeal within time (Etchell v R [2010] NSWCCA 262 at [24] - [25]; Abdul v R [2013] NSWCCA 247 at [35]; and see generally Golossian v R [2013] NSWCCA 311 at [22] - 33]). 24For the reasons given below, I consider that the applicant's proposed grounds of appeal lack merit, with the consequence that an appeal against his convictions would fail. As it would therefore be futile to grant an extension of time, it should be refused. I add that the solicitor's affidavit filed on behalf of the applicant does not in any event provide an adequate explanation for the delay. Some steps were taken to obtain legal advice but there were long periods when nothing happened. 25The extension application in relation to the applicant's sentence is in a different position. His Notice of Intention to Appeal was filed well within the 28 days after his sentence on 10 March 2011 allowed for its lodgement but his Application for Leave to Appeal against sentence was lodged about 2½ months outside the six month period allowed. For the reasons given below, I have formed the view that the applicant's grounds of appeal against his sentences should be rejected. However as his delay was limited and his intended Application for Leave to Appeal arguable, I consider that an appropriate extension should be granted.

[5]

Ground 3: The trial judge improperly commented on the evidence and the legal result of the evidence 30This ground relates to the following passages in the trial judge's Summing-Up: " ... my own view, and here I am expressing my own views about facts, as I am entitled to do, my own view is that on a proper analysis of [the complainant's] evidence she gave evidence capable of supporting each and every one of the charges in the indictment beyond reasonable doubt ... ... Although not a great deal of evidence in terms of number of words is necessary from [the complainant] necessarily to convince you beyond reasonable doubt that the Crown has proven any given count in the indictment based upon her evidence, you must be satisfied that there is evidence, some evidence on which you can base a verdict of guilty, some evidence of each and every one of the elements". 31As held in RPS v The Queen [2000] HCA 3; 199 CLR 620 at [42], "a trial judge may comment (and comment strongly) on factual issues". The trial judge's comments in the passages quoted were limited ones, conveying, in essence, a view that the complainant's evidence was capable of proving the Crown's case to the requisite standard. There can have been no doubt that this view was correct. Neither the applicant's trial nor appeal counsel suggested otherwise. 32The issue for the jury at the trial was whether the complainant's evidence should be accepted. The trial judge's Summing-Up made this abundantly clear. As the applicant conceded that he was present at the complainant's home at the relevant time and that he engaged in repeated acts of sexual intercourse with her, the jury had to consider whether it was satisfied beyond reasonable doubt that, as the complainant asserted, the conduct was not consensual. The trial judge did not express a view to the jury on this question. 33The absence of objection by the applicant's trial counsel to the passages in the Summing-Up now complained of tends to confirm that they were not such as would have caused the jury to be under any misapprehension. I would refuse to grant leave to the applicant under r 4 of the Criminal Appeal Rules to rely upon this ground of appeal.

[6]

Ground 5: The trial judge erred in refusing an application to have the complainant recalled 34The complainant, who lived interstate at the time of the trial, gave evidence over three days concluding 15 December 2010. On 16 December Detective Senior Constable Kendrew and two other police officers gave evidence. DSC Kendrew deposed to her examination of the complainant's unit and her interview of her. On the next day, 17 December 2010, the applicant's counsel sought to have the complainant recalled to enable counsel to put to her alleged inconsistencies between her evidence and her account of events to DSC Kendrew as recorded in DSC Kendrew's police notebook. These comprised, at least principally, alleged omissions in what the complainant told DSC Kendrew. The notebook had only been produced to the applicant the day before. The Crown Prosecutor opposed the application, contending that there was no inconsistency. 35The trial judge indicated to the applicant's counsel that his immediate reaction was "why don't you just tender it?" Counsel responded that she had thought about doing that but considered that the tender would be of limited value to her client because, in light of DSC Kendrew's evidence that she could not recall asking the complainant to give a complete account of the events, "there was probably no expectation of it containing all the significant acts". After further discussion, the trial judge expressed the view that, if recalled, the complainant was likely to say "I was upset, I can't remember exactly what I said" and that he was "singularly reluctant to bring [the complainant] back from another State for her to tell us that". The applicant's counsel had earlier agreed that it was likely that this was what the complainant would say. His Honour also said that "I think your client loses absolutely nothing, frankly that, in fact, he might gain something". The Crown Prosecutor added that he did not know whether the complainant had in fact yet returned home. 36On appeal the applicant relied on Hunt J's observation in R v Fleming (NSWCCA, 12 December 1989, unreported) that "generally speaking" a judge should "always accede to a request to have a witness recalled for cross-examination upon a point of substance which has been overlooked - however incompetently - unless real and incurable prejudice is created for the party calling that witness". As there was no question of incompetence here, the applicant submitted that the observation applied a fortiori. 37Notwithstanding Hunt J's observation as to what should generally occur, the trial judge had a discretion to accede to or reject the application. In my view, it was reasonable for the judge to conclude that the applicant would not suffer any prejudice by refusal of the application as it was open to his counsel to tender the notebook and address the jury on the supposed inconsistencies. That the applicant's counsel chose not to do this is not to the point. An alternative course open to her would have been to obtain agreement from the prosecution as to what the notebook did or did not contain and to tender a note of agreed facts in the same way that an agreed chronology had been put before the jury. Furthermore, there was in my view no error in the judge taking into account his reluctance to recall the complainant when she had completed a lengthy and arduous period in the witness box and had probably returned to her interstate home.

[10]

Ground 9: The trial judge gave incorrect and misleading directions in respect to the issue of breaking and entry and its importance in the trial 46In his Summing-Up, the trial judge referred at two points to the applicant's allegedly unauthorised entry into the unit. His Honour said, in effect, that if the jury was satisfied that the accused gained unauthorised entry to the unit, it did not need to find exactly how that happened. During her final address at the trial, the applicant's counsel placed considerable emphasis on the absence of evidence of any damage to or tampering with any lock at the unit and advanced reasons why the jury should not conclude that the accused gained entry through the window grill that was tendered in evidence. 47The only complaint that the applicant's counsel made at the trial in relation to the Summing-Up on this topic was that the judge did not ask the jury to consider whether the Crown had proved beyond reasonable doubt that the accused would have been able to gain unauthorised entry without leaving evidence of that having occurred. The judge declined to supplement his directions, saying in the absence of the jury: "My point was simply this, you don't need to have done time at Long Bay, as an ordinary lay person, as a member of the jury, to know that it is possible to get into premises without necessarily leaving any discernible trace of it". 48This was a commonsense approach which did not in my view involve any error. The jury was well able to weigh the strength of the Crown's case and consider whether it had been proved beyond reasonable doubt, notwithstanding that no evidence of unauthorised entry was identified. The applicant's counsel was effectively asking the judge to indicate to the jury that it could not find the Crown's case proved unless the Crown proved that unauthorised entry could have been gained without leaving evidence of it. This would have been inaccurate as the jury was entitled to bring its commonsense and experience to bear on this, as on other issues. 49The applicant did not take any other point at the trial relevant to this ground of appeal and has not in my view raised any issue on appeal that would warrant the granting of leave under r 4.

[12]

Ground 12: The trial judge was biased against the applicant 50I have reviewed the record of the trial as a whole and in particular those aspects of it to which attention is drawn in these grounds. Ground 12 was formulated by the applicant and supported by written submissions prepared by the applicant himself. Senior counsel for the applicant on the appeal made it clear that he was not advancing Ground 12. As a result the applicant himself was given the opportunity to present oral submissions on it. I have concluded that there is no merit in either ground. As I am dealing with an application by the applicant to appeal long out of time, it is sufficient to make the following brief observations on the matters relied upon in relation to Ground 10. No additional matters of significance were raised in relation to Ground 12. 51The first matter concerns the trial judge's observations in relation to the withdrawal of a former legal representative of the applicant. In the course of the appeal hearing, the applicant conceded that these observations were not made in the presence of the jury. Accordingly, the point has no substance. 52Secondly, the applicant complained of interruptions by the judge in the course of the applicant's evidence. However, I do not consider these to have been excessive or inappropriate. Essentially, they were for the purpose of ensuring that responsive answers were given, or for clarification. 53Thirdly, during the applicant's cross-examination, the Crown Prosecutor put a suggestion to him to which the applicant answered "How do I answer that, sir?" The judge then responded "Truthfully would be an idea, Mr Simon". Although the element of sarcasm evidently embodied in this remark was inappropriate, I do not consider that it could reasonably be regarded as having caused the applicant any prejudice. 54Fourthly, the applicant complained of an exchange during his cross-examination when there was confusion as to how long he had been at the unit. In my view, nothing turned on this. 55Fifthly, the applicant complained that the judge asked him a misleading question as to what, if anything, the complainant could see during the course of an episode of oral sex. Whether or not the judge's question was based upon a misunderstanding, the submission does not identify any unfair prejudice to the applicant. 56Sixthly, the applicant submits that the judge's attitude to him when he gave evidence was very different from the politeness with which he treated the complainant. However I do not consider that there was any manifest difference which can fairly be regarded as having prejudiced the applicant. 57Finally, the applicant claims that in a number of respects the trial judge in his Summing-Up misstated the applicant's case or failed to mention important evidence. None of these matters were the subject of complaint at the trial and none are of such significance as would warrant a grant of leave under r 4 to raise them.

[13]

Ground 11: The verdict was unreasonable 58In considering this ground of appeal I have undertaken, as required by SKA v The Queen [2011] HCA 13; 243 CLR 400 at [14], an independent assessment of the evidence at the trial, both as to its sufficiency and quality. In my view it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offences with which he was charged (ibid at [11]). Further, I do not consider that it would be "dangerous in all the circumstances to allow the verdict of guilty to stand" (at [14]). My view is thus that the evidence supported the verdicts that were returned (BCM v The Queen [2013] HCA 48 at [31]). 59The following aspects of the evidence are of particular importance in this respect: (1)The applicant's behaviour before the alleged offences occurred, as recorded on CCTV film, whilst he was on Oxford Street and at Museum and Hurlstone Park Railway Stations. Taken together, the films give rise to the clear inference that the applicant followed the complainant at each of those places, keeping his distance so that she did not see him. (2)The applicant's implausible explanation of why he travelled on a train to Hurlstone Park and implausible descriptions of his conversations with the complainant on the train, after alighting and near her unit. (3)The applicant's implausible explanation of why neck ties, which the complainant alleged were used to tie her up, were found knotted with yellow tape. (4)The applicant's implausible explanation of how he came to be in possession of the PIN number for the complainant's credit card. The complainant said that the applicant extracted it from her under duress and that she had had no need to write down the number in order to remember it. The applicant said that the PIN number was recorded on a note in the complainant's wallet, in which he found her credit card. (5)The applicant's behaviour after the alleged offences, as recorded on CCTV, at the Hurlstone Park Railway Station at the time that he is likely to have heard police or ambulance sirens. He appears to move out of sight and then dispose of items, by throwing them on the railway track. The items were subsequently found to include a used condom with the applicant and complainant's DNA on it. (6)The state of complete disarray of the unit as found on the police inspection was consistent with the complainant's evidence and was not satisfactorily explained by the applicant. The complainant's sister confirmed that the unit had not been in that state when she left it on the morning of 31 October. (7)The evidence of police officers, the complainant's neighbour, and her mother, sister and uncle of the complainant's state shortly after the period of sexual intercourse that the applicant asserted was consensual, strongly supported her evidence. (8)The evidence of those persons of complaints by the complainant shortly after the events in question. Evidence of a complainant's distress and the content, recency and spontaneity of her complaints can provide strong support for a Crown case (Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [78] and [98]; Tonari v R [2013] NSWCCA 232 at [200]). (9)The evidence of the complainant herself which appeared from the transcript to be highly credible. 60I have taken into account also the verdicts of guilty returned by what I regard as a properly instructed jury. Having regard to all these matters, I am left in no doubt about the guilt of the applicant. 61Three specific matters raised by the applicant in relation to this ground of appeal can be disposed of as follows. 62First, the applicant contended that it was significant that the complainant did not mention any episodes of penile/oral intercourse during the accounts she gave on 31 October 2009. I do not consider that any significance is to be attached to this bearing in mind the extreme trauma which, on the complainant's evidence, she endured that day. It is unsurprising that if she endured hours of sexual abuse at the hands of the applicant that she may not, in the hours following the assaults, have given an entirely accurate and comprehensive description of all that had occurred. 63Secondly, the applicant submitted that to the extent that the jury may have concluded that the applicant entered the unit through the window grill in evidence, the verdicts should be regarded as unreasonable. I reject this submission as there is no reason to conclude that the verdicts were so based. The Crown did no more than offer entry through the window grill as a possibility. It made it clear that the jury did not need to find precisely how the applicant gained entry. 64Thirdly, the applicant submitted that there was no evidence to support the Crown's suggestion in address that, when at Hurlstone Park Railway Station after the time he spent at the complainant's unit, he was seen on the CCTV to move out of sight when a police car went by. However in my view there was a firm basis for this suggestion when the CCTV film was considered in light of the evidence of the times of the complainant's 000 call and the applicant's use of her credit card, and the applicant's evidence of hearing a siren whilst on the station platform.

[14]

The sentences imposed 65As noted earlier, the trial judge imposed sentences totalling 22 years imprisonment with an aggregate non-parole period of 17 years 6 months. The following summary of the individual sentences imposed and the incompletely served sentences in respect of prior offences is taken from the applicant's written submissions: "Count 1 (s. 113(2)) - break and enter with intent - a fixed term of 2 years imprisonment, commencing on 14 November 2011 and expiring on 13 November 2013. Counts 8 and 12 - s. 61L - indecent assaults - in respect of both counts - a fixed term of 2 years imprisonment, commencing on 14 November 2011 and expiring on 13 November 2013. Count 16 (s. 97(1)) - armed robbery - a fixed term of 1 year 6 months imprisonment, commencing on 14 November 2011 and expiring on 13 May 2013. Count 17 (s. 86(1)(b)) - detain for advantage - a fixed term of 2 years imprisonment, commencing on 14 November 2011 and expiring on 13 November 2013. Counts 18 and 19 (s. 178BA) - dishonestly obtain money by deception - in respect of both counts, a fixed term of 6 months imprisonment, commencing on 14 November 2011 and expiring on 13 May 2012. Counts 2, 3 and 4 (s. 61J(1)) - aggravated sexual intercourse without consent - in respect of each count 18 years consisting of a non-parole period of 13 years 6 months, commencing on 14 November 2012 and expiring on 13 May 2026, with a parole period of 4 years 6 months, expiring on 13 November 2030. Counts 11 and 14 (ss. 61J(1)/344A) - attempted aggravated sexual intercourse without consent - in respect of both counts 16 years, made up of a non-parole period of 12 years, commencing on 14 November 2012 and expiring on 13 November 2024, with a parole period of 4 years, expiring on 13 November 2028. Counts 5, 6 and 7 (s. 61J(1)) - aggravated sexual intercourse without consent - in respect of each count 18 years made up of a non-parole period of 13 years 6 months, commencing on 14 November 2013 and expiring on 13 May 2027, with a parole period of 4 years 6 months, expiring on 13 November 2031. Counts 9 and 10 (s. 61J(1)) - aggravated sexual intercourse without consent - in respect of both counts 18 years made up of a non-parole period of 13 years 6 months, commencing on 14 November 2014 and expiring on 13 May 2028, with a parole period of 4 years 6 months, expiring on 13 November 2032. Counts 13 and 15 (s. 61J(1)) - aggravated sexual intercourse without consent - in respect of both counts 18 years made up of a non-parole period of 13 years 6 months, commencing on 14 November 2015 and expiring on 13 May 2029, with a parole period of 4 years 6 months, expiring on 13 November 2033. The non parole period of 210 months represented 79.6% of the total period of 264 months. As at 10 March 2011 (the date of sentence), the Applicant had been in custody since 10 November 2009 serving sentences in respect of several other unrelated offences. On 10 March 2011, just shortly before Hosking DCJ delivered sentence, the Applicant appeared before Blanch J on a severity appeal in respect of one of those unrelated offences; Blanch J reduced the sentence imposed, so that the Applicant's release date for that offence was varied from 16 January 2012 to 13 November 2011. Hosking DCJ set the sentences for the instant offences to commence on 14 November 2011. Including the sentences imposed in respect of all of the earlier unrelated offences, the Applicant's total effective sentence is one of 24 years 3 days, with a non-parole period of 19 years 6 months 3 days. This is a ratio of non-parole period to total sentence of 81.25%" (Amended Submissions on behalf of Applicant on Application for Leave to Appeal on Sentence pp 1 - 3). 66On 15 July 2011, the sentencing judge corrected the sentences under the slip rule by moving all dates for commencement and expiry back by two days. The date for expiry of the aggregate non-parole period thus became 11 May 2029 and that for expiry of the aggregate head sentence became 11 November 2033.

[15]

The sentencing judgment 67After describing the conduct proved against the applicant, the sentencing judge noted from the complainant's Victim Impact Statement that, understandably, the offences had had a severe and lasting effect on her. The Statement indicated that she suffered from depression and crippling panic attacks, and was no longer able to do her work as a dancer for children. 68His Honour then turned to the applicant's criminal record which commenced with a number of offences as a juvenile. As an adult, his criminal record began with a conviction for sexual intercourse without consent for which he was sentenced on 13 August 1992 to a total term of 21 months imprisonment. The offence involved a violent assault, resulting in the victim screaming for help, breaking free and running down the street and the applicant grabbing her, pulling her into a shed and again violently assaulting her. In the following years, the applicant had convictions for break, enter and steal, indecent assault, assault, assault occasioning actual bodily harm and assault with an act of indecency. The last two charges involved a violent assault on a victim, pursuit of her after she escaped, and a further violent assault accompanied by a threat to kill her. 69In 1995, the offender was convicted of stealing a motor vehicle, being in possession of housebreaking implements, goods in custody, assault, larceny and assault occasioning actual bodily harm. In 1996 he was convicted of stealing from a person and using a weapon to resist arrest. For these offences he received a sentence of 6 years as a minimum term, with an additional term of 2 years. Further offences of possess housebreaking implements, stealing a motor vehicle, larceny, malicious damage and escaping from lawful custody followed. 70In 2002 the applicant was convicted of take and drive a conveyance. In 2004 he was convicted of robbery, obtaining money by deception, receiving stolen property, aggravated break, enter and steal and break, enter and steal. In 2008 he was convicted of custody of a knife in a public place, of being armed with intent to commit an indictable offence and of contravening a domestic apprehended violence order. According to his Honour, in April 2009 he was convicted of larceny and in October 2009 of break, enter and steal and causing malicious damage. He committed a further break, enter and steal offence in 2010. 71The judge noted that the applicant had not shown "even a shred of remorse" for his attacks on the present complainant and that whilst the judge was summing up to the jury at his trial, the applicant had made a gesture of contempt directed at the complainant. 72His Honour described the offences as involving "horrific attacks against a young woman who was entitled to feel safe in her home. They were not by any means sudden crimes of passion but were carefully planned by the offender". His Honour then described how the applicant had clandestinely followed the complainant onto a train and then to her home and, after gaining entry to her unit, had threatened to cut her throat. He then stated that the applicant tormented the complainant over a period of hours "in a variety of ways all the while sexually violating her, including [doing] his best to even have anal intercourse with her". 73His Honour continued: "The offender has proven himself to my satisfaction, beyond any shadow of a doubt, to be and is a serious danger to society. The offender has learned nothing from his many previous periods of imprisonment. His criminal record shows that while he is at large he offends relentlessly, sexually assaulting women with violence, bashing people, robbing people, breaking into their homes, stealing their possessions, stealing cars and offending in numerous other ways. The offender, in my assessment of him, has shown himself to be without a shadow of a doubt an antisocial purely selfish man who cares nothing for the personal integrity and rights of others, in fact that is too mild a description. His long pattern of seriously criminal behaviour shows absolute contempt for both other people and for the criminal law in general. When eventually released the offender will almost certainly offend again. I rate his chances of rehabilitation at close to nil. I recommend that when the offender is eventually released that, as a convicted serious sex offender, he be continuously monitored as closely as possible. If possible the authorities should make the offender wear some kind of electronic tracking device twenty-four hours a day so that his movements can be monitored twenty-four hours a day. It is clear from what I have said thus far that important factors in the offender's sentences are general deterrence, more particularly specific deterrence and protection of the community generally. In terms of the various aggravated sexual assault counts I am obliged, because of the existence of the standard non-parole period, to assess where these offences stand in the overall scale of offences of this general kind. In my view a mid-range offence might involve the use of a knife with threats of wounding and a considerable degree of trauma occasioned to the victim. Here there were these following features as I have already noted: (1) Threats of death by the offender slitting [the complainant's] throat. (2) These assaults took place in her own home. (3) The entire episode involved considerable pre-meditation and planning. (4) In terms of injury and loss to [the complainant] herself, not only was she severely traumatised as might be expected but in addition she has effectively lost her own vocation". 74The sentencing judge then noted the following concerning the applicant's subjective circumstances. 75The applicant grew up in Malabar, attending the local primary school and Matraville High School. He told a reporting psychologist that he began smoking cannabis and drinking alcohol at the age of 12. The psychologist's tests indicated that the applicant was well above average intelligence. Another report that was in evidence indicated that the applicant began intravenous use of heroin at the age of 21, soon progressing to daily use. 76Having noted evidence that the applicant is an Aboriginal man who was born on 29 September 1972, the sentencing judge said: "There is no adequate evidence before me that the offender had the kind of deprived background that was spoken of in the well known case of R v Fernando [Fernando v R (1992) 76 A Crim R 58]. It may have been, I will acknowledge, that his background at La Perouse and Matraville as a child was less than ideal but in my view there is no valid Fernando type factor that should operate here to reduce in any way the offender's sentences". 77In concluding that the sentences for aggravated sexual intercourse should be 18 years imprisonment with a non-parole period of 13 and a half years, the sentencing judge described the offences as "well above the mid-range" for the reasons he had already given. He provided for accumulation as described in [98] below. 78After concluding that the applicant's total sentence should be 22 years with a 17 and a half year non-parole period, his Honour said: "In my view the sentence in total that I have just indicated, even by comparison to a sentence for murder is appropriate for various reasons including these six reasons. Firstly, I am dealing with multiple offences. Secondly, I am dealing with a standard non-parole period and the offender's aggravated sexual assaults fall well above the mid-range and up towards the high range of objective seriousness. Thirdly, there is the offender's appalling criminal record. Fourthly, there is, as I have said, his complete absence of any remorse. Fifthly, there is my assessment that if history is any guide the offender is highly likely to re-offend once released from custody. And sixthly, my assessment is, as I have said, that he represents a very serious danger to the general community". 79I turn now to the applicant's proposed grounds of appeal, dealing last with Grounds 1 and 2 which raise issues of manifest excess.

[16]

Ground 3: The sentencing judge erred in his determination of objective criminality 80The applicant submitted that the sentencing judge erred in concluding that the applicant's aggravated sexual assaults "fall well above the mid-range and up towards the high range of objective seriousness" (see [78] above). 81As assessment of the objective seriousness of an offence involves an evaluative judgment, it is reviewable only in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499. Thus, unless a particular error in approach can be identified, the question is whether the sentencing judge's assessment was open to him (R v Eckermann [2013] NSWCCA 188 at [28]). In my view his Honour's assessment was not, to use the words of House v The King, "unreasonable or plainly unjust" (at 505) and it was thus well open to him, for the reasons that he gave (see [78] above). Particularly significant to my mind was the prolonged period over which the assaults occurred and the fact that they occurred in the complainant's home and that the applicant's presence and repeated threats to kill were calculated to, and understandably did, induce extreme terror in her. 82Particular submissions made by the applicant, and my responses, are as follows. 83First, the applicant submitted that, in assessing objective seriousness, the sentencing judge should not have taken into account the impact of the offences on the victim. In support of this, he cited Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27] which relevantly states: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending". 84His Honour did not depart from this principle. Consideration of the impact of the offences on the victim assisted in an assessment of the seriousness of what occurred. It did not involve consideration of the applicant's subjective circumstances. 85Secondly, the applicant submitted that the sentencing judge made errors of fact in describing the period of the offences as five to six hours and in saying that the applicant tormented the complainant. 86The precise period over which the offences were committed was not identified by the evidence. The period would appear to have been a maximum of about six hours, as the complainant's sister left home between 7.00 and 7.30 am and the 000 emergency telephone call was made by the complainant at 1.39 pm. However, based upon an estimate given by the complainant in evidence that she first saw the applicant "maybe an hour and a half to 2 hours" before her midday alarm went off, the period may have been closer to three hours. His Honour's statement that "over perhaps five or six hours the offender tormented [the complainant] in a variety of ways ... " may thus have overstated the period, but the error was not material. When the point was raised with his Honour after he had finished delivering his reasons, his Honour responded: "My view is that whether it was 3 hours or 5 hours doesn't matter because the point is that it was over a number of hours and was equally terrifying whether it was 3 hours or 5 hours". 87Furthermore, there was no error in his Honour describing the complainant as having been tormented over the relevant period. A primary meaning of the word "torment" is "to afflict with great bodily or mental suffering" (Macquarie Dictionary, 5th ed (2009) Macquarie Dictionary Publishers Pty Ltd). This is what the applicant did to the complainant. 88Thirdly, the applicant submitted that the sentencing judge failed to take into account the following factors which should have led to an assessment of the offences as mid-range: the degree of force or coercion used was limited; there were no humiliating threats or insults; there were no (gratuitous) acts of degradation of the complainant other than the sexual acts themselves; the complainant was not cut at any stage or subjected to undue pain and discomfort; except when tied up, the complainant did not suffer any physical injury; the applicant did not bring a knife to the premises, having obtained one there; at one stage the applicant stopped his assault when the complainant became particularly distressed; his attempted acts of anal intercourse were of very brief duration; each episode of sexual assault was not unduly lengthy and, finally, there was only one victim. 89None of these matters, whether taken individually or together, required an assessment of the offences as mid-range. The complainant was undoubtedly degraded by the repeated sexual assaults which occurred in her own home and repeatedly threatened with violent death by having her throat cut with a knife which the applicant brandished. The applicant's submissions amount to an attempt to have this Court re-assess the objective seriousness of the attacks, but the relevant question is whether his Honour's assessment has been shown not to be open to him. This has not occurred.

[20]

Ground 7: The sentencing judge erred in his application of the totality principle in respect of the accumulation of the individual sentences and accumulation on existing sentences 98For the purpose of considering issues of concurrence and accumulation, the sentencing judge grouped the offences into five categories. The sentences for offences within each category were wholly concurrent with each other. Each of the four categories after the first was accumulated to the extent of one year over the preceding category, with the effect that the total accumulation was four years. The first category comprised the fixed term sentences in respect of Counts 1, 8, 12, 16, 17, 18 and 19. The remaining four categories comprised the offences committed during the four separate episodes of sexual assaults that were committed. 99The sentences that his Honour imposed on 10 March 2011 commenced on 12 November 2011. Their commencement was deferred due to the applicant being in custody from at least 10 November 2009 serving sentences imposed in respect of offences unrelated to those concerning the present complainant. The last of the non-parole periods in respect of those sentences was due to expire on 12 November 2011. 100His Honour declined to allow for any concurrency of the present sentences with the last to expire of the applicant's pre-existing sentences (this being the only one still to expire). He said that he could see no proper reason to do so. 101The applicant complains, first, that the judge should not have accumulated the present sentences as he did because they formed 'a single episode of criminality'. However, in my opinion it was within his Honour's discretion to take the view that whilst the sentence for one offence within one of his Honour's categories comprehended and reflected the criminality involved in the other offences within that category, the sentences for offences in different categories did not have that effect in relation to the criminality of the offences within other categories. 102Decisions concerning concurrence and accumulation are discretionary decisions to which the principles in House v The King are applicable. No error of principle having been identified, to succeed the applicant would have had to show that the judge's decision was "unreasonable or plainly unjust". In my view he did not do so. 103The same reasoning is applicable to his Honour's decision not to make the sentences to any extent concurrent with the pre-existing, unrelated sentences. His Honour correctly took the latter sentences into account when considering the principle of totality, that is, that the aggregation of the sentences be "a just and appropriate measure of the total criminality involved" (Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 307 -308). That his Honour did not refer in this context to all of the pre-existing sentences is not of consequence as it is apparent from his review of the applicant's criminal history that he was well aware of those earlier sentences.

[21]

Ground 8: The sentencing judge erred in his approach to the offender and his prior criminal record 104The applicant complains first of a comment made by the sentencing judge immediately after the applicant was convicted that "this will be the last time your client rapes anybody", his acceptance in the course of the sentencing submissions of the Crown proposition that the applicant was "a recidivist violent sex and property offender" and his comment in his sentencing judgment that the applicant's "criminal record shows that while he is at large he offends relentlessly - sexually assaulting women with violence, bashing people, robbing people etc." The first of these comments was unnecessary and inappropriately emotive but is not indicative of error in his Honour's subsequent sentencing decision. The second and third were justified by the applicant's criminal record. 105Contrary to the applicant's submissions, the judge's further comment in his sentencing reasons that the applicant thought he had skill as a criminal was justified by the steps that the applicant took, whilst with the complainant at her home, to attempt to conceal his identity from the complainant and prevent it subsequently being ascertained. 106Again contrary to the applicant's submission, there was no error in the sentencing judge's remark to the effect that the applicant had been treated with considerable leniency when sentenced in the past. 107The sentencing decision here pre-dated the High Court decisions in Bugmy v The Queen [2013] HCA 37; 87 ALJR 1022 and Munda v The Queen [2013] HCA 38; 87 ALJR 1035. However his Honour considered whether the applicant, who is an Aboriginal man, had a deprived background and concluded that he had not. The evidence did not suggest otherwise. 108The applicant further complains that the sentencing judge declined to grant an adjournment to enable preparation of psychiatric or psychological reports. However, it was within his Honour's discretion to do this as the Crown asserted, without contradiction by counsel for the applicant, that the Crown had subpoenaed the Justice Health file for the applicant and this showed that in none of the psychiatric and psychological reports tendered in his many past sentencing proceedings had he presented with any mental health problems.

[25]

Ground 2: The total sentence imposed was manifestly excessive 113Sentencing decisions are discretionary judgments to which the principles in House v The King are applicable. Thus, "a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion" (Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]). If no specific error can be demonstrated, an appellant cannot succeed unless he or she establishes that the sentence is unreasonable or plainly unjust, such that it can be concluded that some, albeit unidentified, error must have occurred (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]). This ground, referred to as one of manifest excess, is established where the sentence imposed "is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it (Hili v The Queen [2010] HCA 45; 242 CLR 520 at [60]; Bugmy v The Queen at [52]). 114Departure from a range of sentences imposed in previous cases does not indicate that a sentence is manifestly excessive. "[P]revious sentences may be used to establish a range of sentences that have been imposed but not that the range is correct. In particular, the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'" (Munda v Western Australia at [39] citing Hili v The Queen at [54]). 115The applicant referred to New South Wales Judicial Commission statistics in relation to sentences for s 61J offences as the foundation for his submission that he was "sentenced on the basis that his offences were far worse than other offences despite no finding having been made that they were so and the judge having found, at worst, that they [were] above the mid-range". 116Bearing in mind the diversity of the conduct that can constitute an offence under s 61J, I do not consider statistics to be of assistance in the present case. To adapt an observation made by the plurality in Hili v The Queen at [48] in the context of federal offences, the limited number of offenders sentenced each year and the diversity of the circumstances of their offending and their personal circumstances render it "not possible to make any useful statistical analysis or graphical depiction of the result". 117If any guidance is to be gained in relation to the resolution of the present ground of appeal from sentences previously imposed, it must come, if at all, from consideration of the features of particular cases decided in the recent past. I say recent because, as observed in R v Magnuson [2013] NSWCCA 50 at [117], "[o]ver the past 25 years, there have been a number of developments within the criminal justice system of New South Wales that have led to a lengthening of sentences to be served, both with regard to sexual offences and offences generally" (per Button J with whom McClellan CJ at CL and Bellew J agreed). 118It is unnecessary to repeat the reviews undertaken in R v Bilal Skaf [2005] NSWCCA 297 at [48] - [52] and Stephens v R [2010] NSWCCA 93 at [60] - [64] of earlier, potentially relevant, sentencing decisions. It is sufficient to refer to the decisions in R v Reyes [2005] NSWCCA 218 and in Stephens itself. 119The decisions reviewed in Skaf and Stephens were relied upon by the applicant in the present case to support the following submissions: "Unlike Boatswain, Presta and AEM, there was only one victim; unlike Boatswain, Presta and Roberts, the applicant did not humiliate the victim by urinating on her; unlike AEM, the offences were not committed in company (although this is now a separate offence, attracting a maximum penalty of life imprisonment - s.61JA); unlike Presta, Reyes and CM implements were not inserted into the victim's body and she was not subjected to significant corporal violence; and unlike Reyes, the applicant did not inject the victim with an illicit drug; Eatts of course involved a prison assault - an area where the Courts have traditionally imposed heavier sentences because of the vulnerability of prisoners in gaol. With respect to the attempt offences it is respectfully submitted that they could not appropriately be described as in any way more than serious". 120In Reyes, the complainant was detained, at knife point and against her will, for a period of about 20 hours during which the offender sexually assaulted her repeatedly and injected her with amphetamines. Following a successful Crown appeal against the inadequacy of the sentence imposed in the District Court, this Court imposed total sentences of 18 years imprisonment with an aggregate non-parole period of 15 years. Grove J (with whom Wood CJ at CL and Hoeben J agreed) described the offences as falling "at least in the middle of the range of objective seriousness" (at [84]). The offender had a prior criminal record but it did not include any offences of violence or sexual assault. 121In Stephens, the offender detained the complainant in her car for a period of time during which he sexually assaulted her in a variety of ways. He was sentenced in the District Court to an effective term of imprisonment of 20 years with a non-parole period of 14 years, after a discount of 25 per cent for pleas of guilty and partial accumulation. Fullerton J (with whom Latham and Schmidt JJ agreed) described the offences as "serious and easily characterised as offending in the mid-range", although not within the worst case category (at [65]). After identifying some specific errors in the sentencing process, the Court re-sentenced the offender to sentences totalling 18 years imprisonment, with an aggregate non-parole period of 12 years. It did so after taking into account a 25% discount for early pleas of guilty and notwithstanding that the offender had no prior criminal record. 122It is true that the applicant here has been able to point to cases in which it is arguable that more lenient sentences than the present were imposed but that is of limited, if any, significance, because that will almost always be able to be done (see Vandeventer v R [2013] NSWCCA 77 at [45] - [46]). What is of more, although still limited, significance is that there are cases (Reyes and Stephens) in which sentences not wholly disproportionate to the present sentences have been imposed. Moreover the sentences imposed in those cases were, because they resulted from this Court re-sentencing, ones regarded by this Court as the appropriate sentences for the offences. They were not simply sentences imposed by a lower court that this Court allowed to stand because it had not been shown that they were manifestly excessive. It may be inferred therefore that the sentences which this Court would have considered able to be imposed by a lower court without being quashed on appeal for manifest excess would have included ones higher than the sentences imposed by this Court. 123It is true also that one can, as the applicant has done (see [119] above), point to aggravating features that were present in other cases but not in this. That does not however mean that the present case, with its own aggravating features, in particular the subjection of the complainant to extreme terror over a period of hours in her own home, does not warrant the sentencing judge's description of the offences as "up towards the high range of objective seriousness". As I have held above, there was no error in his Honour so describing the offences. 124In sentencing the applicant his Honour rightly had regard also to the multiplicity of offences, the applicant's "appalling criminal record", his absence of remorse, the high likelihood that he will re-offend and the "very serious danger to the general community" that he represents (see [78] above). Taking into account these factors, the maximum sentences stipulated (in particular that of 20 years for the s 61J offences) and the standard non-parole periods where applicable (in particular that of 10 years for the s 61J offences), I cannot, and do not, conclude that the sentences imposed in the District Court were manifestly excessive in the sense to which I have referred above. I would accordingly reject these grounds of appeal.

[26]

ORDERS 125For the reasons above, I propose the following orders: (1)Application for extension of time to appeal against conviction refused. (2)Application for extension of time to appeal against sentence granted. (3)Application for leave to appeal against sentence granted. (4)Appeal against sentence allowed in part. (5)In relation to the sentences imposed in the District Court on 10 March 2011 (and corrected on 15 July 2011): (a)Quash the sentences imposed in respect of Counts 13 and 15 and in lieu impose sentences comprising a non-parole period of 12 years 6 months to commence 12 November 2015 and expire 11 May 2028 and a balance of the term of the sentence of 5 years 6 months to expire 11 May 2033. (b)The sentences imposed are otherwise confirmed. (c)Accordingly, the applicant's sentences will expire on 11 November 2033, with the earliest date that he will be eligible for parole being 11 May 2028. (6)Appeal against sentence otherwise dismissed. 126LATHAM J: I agree with the orders proposed for the reasons given by Macfarlan JA. Having reviewed all of the evidence adduced at trial, I also have no doubt that the applicant was rightly convicted on all counts. 127Counsel at trial was confronted with a particularly challenging task. Faced with the irrefutable evidence establishing that the applicant had indeed had sexual intercourse with the complainant, the applicant's case necessarily focussed on the complainant's consent to a series of sexual acts with a virtual stranger whom she encountered on public transport in the early hours of the morning. As Macfarlan JA has noted at [59], there was a powerful body of evidence which rendered that account inherently ludicrous. 128Notwithstanding this considerable forensic difficulty, counsel at trial conducted a vigorous and legitimate defence case. There was nothing more that could have been done, consistent with trial counsel's duty to the applicant and to the court, in all of the circumstances of the trial. 129The appeal against conviction bears all the hallmarks of a trawl through the trial transcript, isolating evidence and directions from their context, in order to justify a challenge to these inevitable and entirely appropriate verdicts. 130R A HULME J: I agree with the reasons, conclusions and orders proposed by Macfarlan JA. 131I also agree with the additional observations of Latham J. My own assessment of the evidence leads me to the same conclusion that the verdicts of the jury were inevitable and entirely appropriate