Stein v R

Ground 2: Error in the assessment of the applicant's disability

1. Evidence of the applicant's cognitive impairment formed part of his case at trial and on sentence. By this ground, the applicant contends that the sentencing judge failed to give "proper weight" to the opinions of Professor Hayes by preferring the conclusions of Dr Samuels and Dr Martin. It is submitted that, as Professor Hayes alone of the expert witnesses conducted a formal assessment of the applicant's intellectual functioning, the sentencing judge was wrong to "reject" her opinion that "the applicant's mental state was causally related to his offending", particularly with respect to his capacity to interpret and understand verbal and non-verbal cues. It is submitted that, in finding that the applicant was able to understand the word "no", the sentencing judge oversimplified the evidence as to Ms R's rejection of the applicant's sexual advances.
2. In seeking to make good this ground, the applicant focused on whether or not Ms R gave evidence of having used the word "no" in relation to both acts of intercourse. Any oversimplification rests in that argument, not in any conclusion of the sentencing judge. Her Honour's assessment of the weight to be given to the opinions of Professor Hayes was, subject to the requirement that her conclusions had to be in conformity with the verdicts returned by the jury, a discretionary matter. The sentencing judge accepted Professor Hayes' conclusion that the applicant had an intellectual disability with associated impairment in areas of cognitive functioning; she was not required to accept the qualified opinion offered by Professor Hayes as to the possible relevance of the applicant's impairment to his understanding of the absence of consent by Ms R to sexual activity.
3. That was particularly so in light of the way in which the applicant advanced his case to the jury. The applicant did not defend the charges by a claim that his cognitive impairment prevented him from comprehending the verbal and non-verbal cues given to him by Ms R. His case was that Ms R initiated sexual activity and persisted in the face of his clear reluctance, with the applicant ultimately persuaded by her to engage in sexual intercourse. In light of his sworn evidence to that effect, it was entirely open to her Honour to reject the opinion expressed by Professor Hayes as to the potential relevance of the applicant's impairment. The professor opined: "Mr Stein's mental health may contribute to the commission of the offence in a material way, because of his intellectual disability and Autism Spectrum Disorder diagnosis, and particularly his deficits in verbal cognitive reasoning skills and adaptive behaviour communication skills. These deficits may have impacted upon his ability to understand and process the verbal interactions between himself and the victim."
4. The sentencing judge gave clear reasons for her rejection of that opinion. Her Honour noted its qualified nature, expressed by use of the word "may". She referred to the simple nature of the communication between Ms R and the applicant, which her Honour concluded was not so subtle that the applicant may have misunderstood it, despite his cognitive impairment. Ms R was clear and straightforward in conveying her lack of consent, using the word "no". Whilst the applicant is critical of her Honour for so concluding, there was ample evidence of Ms R's rejection of sexual activity, conveyed in a straightforward way.
5. In her evidence of 1 March 2022 Ms R told the jury that she had never met the applicant before the evening prior to the offences. She had not had any real discussion with him on that evening, spending her time crocheting and chatting with Ms Bunning whilst the applicant watched car videos and then went out with Mr Berry. She had not seen him again before going to bed and falling asleep. When awoken by the applicant asking to get into the bottom bunk bed with her Ms R allowed him to do so as he told her "there was shit on the top bunk". She moved closer to the wall because she did not want him to touch her, and faced away from the applicant, with her back to him. Ms R did not respond when he began to touch her until he tried to penetrate her vagina with his finger, at which time she told him that she was in pain and tired. It was open to her Honour to conclude, as the jury must have, that the applicant understood this as a rejection of digital penetration since his response was to move his hand away from Ms R's genital area. It is immaterial that Ms R did not use the word "no" at that point. She said and did enough to convey her rejection of this activity to the applicant.
6. When the applicant pulled Ms R's pyjama pants and underwear down despite her refusal to engage with him, she said, "You can touch me wherever but just don't fuck me". The applicant's case was not that he did not understand these clear words, but that Ms R did not use them. By its verdict the jury clearly accepted Ms R's account of what was said and rejected that of the applicant. Consistent with the verdict her Honour accepted that Ms R had conveyed her lack of consent. Soon after the assaults, Ms R complained of what had happened, telling others that "Jacob fucked me, and I said no".
7. Her Honour characterised Ms R's refusal of sex as her having told the applicant no. That was a reasonable summary of what Ms R had said and done, including by reference to Ms R's evidence of the terms of the complaint she made, evidence that was available to go to the truth of the assertion pursuant to s 66 of the Evidence Act 1995 (NSW).
8. As her Honour observed when considering the weight to be given to Professor Hayes' qualified opinion, the professor did not engage with "the nature of the offending". She did not consider the evidence given by Ms R to the jury and did not ask the applicant about any aspect of the evidence. She did not refer to the evidence of Drs Samuels and Martin in which each noted the applicant's claim that Ms R was the initiator of sexual activity, or the conclusions each had reached that the applicant had an adequate understanding of sexual consent. Finally, her Honour noted that Professor Hayes did not refer to or assess the relevance of important evidence in the trial, being the record of the text messages exchanged between the applicant and Ms R very shortly after the offending, in which the applicant acknowledged "that the victim said no" and apologised for what he had done.
9. The value of an expert's opinion is dependent to an extent on the material provided to the expert and upon which the opinion may be based. In forming her qualified opinion, Professor Hayes did not have access to the trial testimony of Ms R, nor was she provided with the record of the exchange of text messages between Ms R and the applicant. She was given the transcript of the applicant's evidence only after writing her report and offered the bare statement that consideration of the transcript did not alter her opinion. The rationale for that statement was not explained.
10. Her Honour concluded that the weight to be given to Professor Hayes' evidence was diminished by reference to the limited material provided to her, and the importance of the information that she did not have access to in forming her opinion, together with the professor's failure to engage with the applicant's case or the opinions of Drs Samuels and Martin. That conclusion was in my view both reasonable and appropriate; it was certainly open to her Honour in the exercise of the sentencing discretion. Matters of weight are very much for the sentencing judge. For that reason a ground of appeal against sentence which asserts that too much or too little weight has been given to a particular feature does not raise a complaint of error of the kind described in House v The King (1936) 55 CLR 499 at 504 - 505; [1936] HCA 40, and which can properly be determined by an appellate court: see generally WW v R [2023] NSWCCA 311 at [60] - [65].
11. Whether this ground is viewed as a legitimate complaint by itself of error, or a complaint more properly directed to a contention that the sentence imposed is unfair, it is not made out. The applicant's disability was specifically and properly recognised in the conclusions reached by the sentencing judge that Mr Stein would experience hardship in a custodial environment because of that feature, leading to the finding of special circumstances such as to vary the statutory ratio of sentence in the applicant's favour. That approach was open to her Honour in the exercise of the sentencing discretion.

Ground 3: Error in the weight given to childhood deprivation

1. By this ground the applicant argues that he presented a "compelling case of early childhood deprivation" and her Honour erred in giving it such limited weight that she did not conclude that his moral culpability for the offending was reduced.
2. As another complaint directed to the weight given, or not given, to a particular feature, it is best addressed as relevant to an assertion of unfairness in the sentencing outcome. Even so, the applicant has failed to make out his complaint.
3. The sentencing judge took into consideration the evidence tendered by the applicant of domestic violence against his mother prior to his birth, and the incident that led to the applicant being removed from his mother's care. She observed that the evidence assisted her in understanding the applicant's personal circumstances. Her Honour did not go further and conclude that the evidence relied upon to establish childhood dysfunction diminished the applicant's personal blameworthiness for his crimes. She said: "The next issue concerns whether the principles enunciated in Bugmy and Munda and other cases including Fernando are enlivened here. There are some circumstances of Mr Stein's life that meant he did experience disadvantage, even deprivation, when he was an infant. I do accept that violence experienced by a mother during pregnancy may affect and have a long-term effect on a child. In that respect, I have read exhibit 2 [the AIFS document] during the morning tea break. But even accepting that fact, I have ultimately agreed with the Crown, namely the evidence does not enliven Bugmy principles."
4. That conclusion was open to the sentencing judge.
5. There is no rule of law that any deprivation or difficulty in childhood obliges a sentencing court to ameliorate the sentence imposed upon an offender. Although, as here, the authority of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 is frequently relied upon to so argue, the High Court did not formulate such a rule. In Bugmy, at [40], the Court said: "The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way."
6. In the applicant's case, her Honour was not persuaded that the applicant's upbringing had been relevantly dysfunctional. Whilst she accepted that there was domestic violence directed to the applicant's mother when pregnant, and that the applicant himself had been threatened in an incident when he was a baby, his childhood had been otherwise positive and supportive. After some turbulence when the applicant was a very young infant, the evidence was that he had enjoyed a relatively stable upbringing. The foster home in which he was placed for the first 3 years of his life appears to have been positive and loving. There was a period of disruption when the applicant returned to his mother's care and settled into a new environment, but he thereafter enjoyed a loving and supportive home, with his mother and stepfather providing him with a caring environment. Nothing in Ms Shaw's affidavit, the AIFS paper, or Professor Hayes' report, could establish that the events of gestation and very early childhood had had any material impact upon the applicant. There was simply no evidence of the sort of traumatic and damaging life described in Bugmy, and the conclusion reached by the sentencing judge was open to her.
7. That is particularly so in circumstances where the applicant's case was not one where he asserted that childhood adversity or cognitive impairment had any role to play in the incident reflected by the offences of which the applicant was convicted. His case was not that early dysfunction or cognitive impairment had left him unable to understand sexual consent or to control his sexual urges; it was that such sexual activity as had occurred had been initiated and consented to by Ms R. Necessarily, that had some impact upon the weight to be afforded to his claim on sentence that his responsibility for crimes he denied had occurred in the way particularised should be found to be reduced.
8. Her Honour was correct to reject the contention that so-called "Bugmy features" had any role to play in the sentence proceedings, other than by assisting the sentencing court to fully understand the applicant's subjective circumstances. The applicant's childhood was not of the seriously deprived or disadvantaged type that led to the development of "the Bugmy principle".

Ground 4: Error in assessing the applicant's future prospects

1. The applicant's contention is that the sentencing judge gave "undue weight" to the applicant's failure to accept responsibility for his crimes and, in effect, punished him for his plea of not guilty at trial. Both propositions must be rejected.
2. Her Honour's conclusions as to the applicant's prospects for rehabilitation and likelihood of reoffending were in fact largely neutral, in that she could make neither a positive nor a negative finding with respect to those features. She observed that it was difficult to reach any conclusion because the applicant "has not accepted responsibility for what he did, nor expressed any insight into the harm done". Her Honour concluded: "[…] I cannot find even on balance that he has good prospects of rehabilitation or is unlikely to reoffend".
3. Referring to Alseedi v R [2009] NSWCCA 185 and Sigalla v R [2021] NSWCCA 22, the applicant argues that remorse is not a pre-requisite to a conclusion that an offender has positive prospects of rehabilitation or is unlikely to re-offend. Whilst that proposition is undoubtedly correct, its existence does not dictate that an offender who maintains his or her innocence will always be entitled to favourable conclusions being reached by a sentencing court with respect to these features; it will always be a matter for assessment of the particular circumstances.
4. In the applicant's case her Honour referred to the features relevant to that assessment. She noted that the applicant had apologised for his conduct and expressed some regret for it in the text messages he sent to Ms R, although she ultimately concluded that the significance of that evidence had been diminished by the applicant's claim at his trial that his messages were not a genuine acceptance of wrongdoing. She had regard to the applicant's former good character, the absence of any criminal record, the family support available to the applicant, and his acceptance of the need for counselling, as relevant and positive features, each of which was considered. However, even taking those features into account, the sentencing judge could not make positive findings that the applicant had good prospects for the future or was unlikely to reoffend. Those conclusions were open to the court.
5. The failure to acknowledge wrongdoing, and to accept responsibility for it, are features of relevance to the assessment of an offender's prospects. The offender who will not admit wrongdoing is very likely to be compromised to some degree in his or her capacity to reform the conduct that led to the commission of the offence. That was her Honour's conclusion in this instance.
6. That she reached that conclusion cannot be regarded as a form of punishment wrongly meted out to the applicant for entering his pleas of not guilty. It was not the applicant's pleas that her Honour gave some weight to, but the positive case he advanced in which he falsely blamed Ms R for initiating sexual activity in the face of his reluctance to participate in it. It is always open to an accused person to enter a plea of not guilty and advance what was once described as "a negative defence", that is, a defence which tests the strength of the Crown case and seeks to highlight discrepancies or inconsistencies in the evidence, without advancing an alternative case, as the applicant did here. No accused person can be penalised by a sentencing court for putting the Crown to proof. However where, as here, an accused person does advance a positive defence, by suggesting or deposing to a particular set of circumstances, a sentencing court is entitled to consider the case put at trial when determining features relevant to sentence. The nature of the applicant's case was of direct relevance to his prospects for the future, insofar as it did not allow for any favourable finding that the applicant had demonstrated insight into his offending conduct. Without insight, there remains a risk of recidivism. That was not the conclusion of the sentencing judge in this case; rather, her Honour found that she could not make any positive findings as to rehabilitation and future good conduct. No error has been shown in that conclusion.

Ground 5: Error in the weight attributed to the harm done

1. In another complaint about the weight afforded to a particular feature the applicant submits that "undue weight" was attributed to the harm done to Ms R by the offences committed against her. He points to part of the sentencing remarks, and to something said by her Honour to the jury at the conclusion of the trial, to support his argument. The impugned passage from the sentencing remarks is: "Ms [R] courageously read her victim impact statement to this Court. Whilst she says that she cannot describe on pen and paper the impact of these crimes upon her, she has set out what can only be described as the devastating impact. The harm done to Ms [R] must be a sentencing purpose that attracts considerable weight in terms of the appropriate sentences."
2. From her Honour's comments to the jury after the delivery of its verdicts the applicant highlights the following as evidence that the judge was "personally affected by the trial evidence of the victim": "I do want to say two things to you before I discharge you. Firstly, it was a distressing experience watching Ms [R] give her evidence, I acknowledge that. And I acknowledge that that may have an impact - no doubt, have an impact on you. If you want to, you should take advantage of a counselling service that is free of charge to you. You'll be given a brochure about that. But I stress that I am well aware that that was distressing. It was distressing for me and no doubt for you. So, if you feel the need to take account of the counselling - take advantage of that service, please do. So, that's the first thing I want to say to you."
3. The first complaint concerning her Honour's remarks on sentence is a purely semantic one; the second complaint about the remarks to the jury mistakes the functions of a trial judge with the functions of a sentencing judge. Neither has merit.
4. In the former, her Honour was doing no more than giving proper attention to the harm done to Ms R, that being one of the purposes of sentencing provided for by s 3A(g) of the Crimes (Sentencing Procedure) Act. Whilst her Honour referred in the course of her remarks to the contents of Ms R's victim impact statement, she could have made the same observation if no victim impact statement had been received. It should not be a matter of surprise or comment that a sentencing court might conclude that a victim of sexual assault has suffered harm, even devastating harm; it is the long experience of the criminal courts that sexual violence ordinarily causes great damage to the victim of it. There can be no error in referring to that feature of sexual offending.
5. Contrary to the applicant's submission, the use by her Honour of the adjective "devastating" does not establish that the sentencing judge made a finding that the harm done was much greater than that which might be expected such as to constitute "substantial harm", thus expressing a conclusion that a feature of statutory aggravation provided for by s 21A(2)(g) of the Crimes (Sentencing Procedure) Act had been made out. Devastating harm to the victim of sexual offending is exactly what might be expected to be occasioned by the commission of an offence of sexual assault. That is one reason the legislature has seen fit to penalise such offending with a maximum term of 14 years imprisonment and a SNPP of 7 years. Sexual crimes are of their very nature serious and do great harm. There could be no error in her Honour acknowledging that harm.
6. As to reliance upon her Honour's comments to the jury at the conclusion of the trial as evidence that the sentencing judge was "personally affected" by Ms R's testimony, that complaint must be very firmly rejected. It entirely mistakes the separate and distinct role of the trial judge with that of the sentencing judge.
7. It is right and proper for a trial judge to acknowledge the possible impact upon jurors of the evidence given at trial. Our criminal justice system regularly exposes jurors to evidence of a disturbing and traumatic nature, which is highly likely to take a personal toll on at least some jurors. Criminal lawyers can sometimes lose sight of the fact that, for those not familiar with and largely inured to the horror that typically attaches to crimes of personal violence, listening to a witness describe such a crime or its aftermath can be extremely distressing, and can lead to some level of trauma for the listener. Recognition of that fact has in modern times led to the establishment of a counselling service provided without charge to jurors under the auspices of the Office of the Sheriff. It is always important for a trial judge to acknowledge the possibility that jurors may suffer some level of vicarious trauma from serving on a jury in a trial involving an allegation of violent crime. It is equally important for the judge to encourage jurors to take advantage of the available counselling services if required. Most trial judges will as a matter of ordinary practice say something very like the observations made to the jury that heard the applicant's trial. That is done to discharge the judge's duty in managing the jury, as much as from a sense of common humanity; it should not be taken to be evidence of some personal bias held by the judge which will later be visited upon the offender at sentence. It does not serve that function in the applicant's case.

Ground 6: Manifest excess

1. The applicant relies heavily on the errors asserted by grounds 1 to 5 to establish that the sentence imposed upon him is plainly unjust. To that extent this ground cannot be made out, as I have already concluded that the errors complained of have not been established. He otherwise contends that the sentence itself is demonstrative of error. That contention too must be rejected.
2. The principles to be applied to a ground asserting that a sentence is manifestly excessive are well established. In Hughes v R [2018] NSWCCA 2 at [86], this Court said: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: 1. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; 2. intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; 3. it is not to the point that this Court might have exercised the sentencing discretion differently; 4. there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and 5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust. See Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443]."
3. The applicant calls in aid sentencing statistics published by the Judicial Commission for offences contrary to s 61I of the Crimes Act, in the period 24 September 2018 to 31 December 2022, for an offender with no criminal record who was convicted after trial, based on a sample size of 53.
4. Even setting aside the ordinarily cautious approach appellate courts should take to the use of sentencing statistics as evidencing the inadequacy or excessiveness of a sentence imposed, the statistics cited here are particularly unhelpful, in that they refer to offenders who were sentenced for a single offence contrary to s 61I, rather than for two such counts, as was the applicant. The features that are of assistance in assessing the complaint of an excessive sentence are the maximum penalty and SNPP for an offence of sexual intercourse without consent, being 14 and 7 years respectively; the gravity of the offences, being offences assessed as falling within the mid-range; the number of offences, being two, and any requirement for some level of accumulation; and the subjective case advanced.
5. Taking those features into consideration, an aggregate term of 6 years with a NPP of 3 years and 3 months cannot be regarded as unjust. The NPP represented the minimum period required to be served to reflect the gravity of the crimes, having regard to the subjective case. It does not bespeak error. Nor does the overall term evidence some misapplication of principle.
6. This ground cannot be made good.

Conclusion

1. For the reasons given the orders I propose are: 1. Grant the applicant leave to appeal against the sentence imposed upon him on 13 May 2022. 2. Dismiss the appeal.
2. FAGAN J: I agree with Wilson J.
3. SWEENEY J: I agree with Wilson J.

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