Stewart v R

7This summary is based on the findings in the remarks on sentence, a document containing agreed facts that was tendered in proceedings on sentence, and a victim impact statement that was tendered by the prosecution. 8As at November 2010, the applicant and the victim had been in a relationship for some years. The relationship had been somewhat disrupted, and had not been continuous. They had a three month old baby. On the evening of Saturday 21 November 2010, the victim and the applicant were drinking and having a barbecue. The victim had recently, and perhaps only on that evening, informed the applicant that their relationship was over. Throughout the evening the victim was communicating with other men on Facebook by way of her mobile phone. The situation upset the applicant and made him jealous. 9Later in the evening, the victim was on the phone to a female friend, and that conversation further distressed the applicant. He grabbed the phone and threw it at a shed, with sufficient force for it to smash. This behaviour led to a charge of malicious damage, which was taken into account on a Form 1 in the proceedings on sentence. A short time afterwards, presumably repentant, the applicant helped the victim find most of the pieces of the phone. 10As for the commission of the offence under consideration, I proceed to quote directly from the Agreed Facts: "The complainant was subsequently inside her unit lying on the lounge when the accused came in and lay on top of her. He grabbed her wrists and pinned them down above her head whilst trying to kiss her. She struggled and told him to get off her but the accused was able to remove her underpants. The complainant continued to struggle and squirm whilst attempting to get away from the accused which resulted in her falling off the lounge and onto the floor. He then picked the complainant up by both wrists and pulled her back onto the lounge. He attempted to lift her legs above her head and placed his fingers from his right hand into her vagina. This occurred for about 30 seconds whilst the complainant was saying, "No"." 11Police attended and the applicant was arrested. He agreed to participate in an ERISP without consulting a solicitor. To quote from the Agreed Facts again: "During this interview the accused made admissions to having digitally penetrated the complainant's vagina. He further stated that the complainant had been kicking, spitting and biting him at the time." 12In the remarks on sentence, his Honour found that: "[T]he pretty classic situation developed here where because of all that had gone on and his feelings of jealousy and no doubt frustration about the situation resulted in him attempting to illustrate his dominance by doing what he did." That finding of fact was not the subject of challenge in this Court. 13The victim impact statement indicated that there had been psychological consequences of the offence suffered by the victim. These included sleep disturbances, intrusive thoughts, panic attacks, anxiety in public places, difficulty concentrating and hyper-vigilance. The report concluded by stating that the victim "has been severely traumatised by this assault" and that "[a]lthough some of her symptoms are diminishing, it is difficult to predict how long this may continue for; it could be for many years still to come." Although a portion of the victim impact statement was objected to in the District Court and not pressed by the prosecution, the parts to which I have referred were not the subject of objection.

14The applicant pleaded guilty at the earliest opportunity, and received a 25 per cent discount on sentence as a result. 15As for remorse, he gave evidence in the proceedings on sentence. The following exchange occurred: "Q. In terms of your behaviour and what you did on this particular night how do you feel? A. Sorry for what happened you know and I wish it didn't happen the way it happened, it was - we could've resolved it in another way. Q. In relation to the relationship did you accept that it was over? A. Yes. Q. Well you accept it now but at the time did you accept it? A. Not at that time, no, not completely. Q. Were you angry? A. Yes I was inside yes." 16In the remarks on sentence, in dealing with the position of the applicant with regard to what he had done, his Honour said: "He also and I noted this because it is a courageous thing to do in my view, when he gave evidence he said, I accept that I did not accept what she said, it was not over as far as I was concerned, regrettably not an unusual situation, the parties involved are not able to stand back and realise it takes two people to have a relationship, not just one but be that as it may, he owned up to that." A little later, his Honour said: "I have ultimately decided that he has acknowledged his responsibility, I think that is encouraging and he is only twenty-two." 17The applicant was 21 years of age at the time of the offence. The victim was two or three years older. 18The applicant had some criminal antecedents in Queensland. Importantly, as at the date of the offence on 21 November 2010, he was subject to suspended sentences imposed in that State. A criminal record from Queensland was tendered in the proceedings on sentence. It showed that, on 29 April 2009 in Toowoomba District Court, the applicant was convicted of arson of an aircraft or a motor vehicle, that offence having been committed on 24 November 2008. Pursuant to the different structure of suspended sentences that appears to operate in that state, he was sentenced to imprisonment for 2 years, to be suspended for 3 years, after serving 6 months. 19On the same day, he was convicted of wilful damage committed on 23 November 2008; unlawful use of motor vehicles, aircraft or vessels, committed on 24 November 2008; and three counts of entering premises and committing an indictable offence by breaking, all committed on 25 November 2008. With regard to all of those offences, the applicant was sentenced to a further suspended sentence, comprising imprisonment for 6 months, suspended for 3 months, after serving 6 months. 20It seems that the custodial portions of the two suspended sentences were to be served concurrently with each other. 21With regard to the question of whether or not the applicant was affected by drugs or alcohol at the time of the commission of the offence, his Honour found as follows: "He was, I am satisfied, affected by alcohol, that is part of the picture and in addition, it emerged that not necessarily on the same day but shortly prior to that, he had been participating in illegal drugs and they no doubt were still in his system because a urine test once he was in custody revealed that there were drug elements or illegal elements in his urine, so the combination of alcohol adds to all that. Now none of those factors in my view amount to an excuse, they are an explanation really of why things got to the stage they did and why he, instead of exercising appropriate restraint and control, acted in the way he did." 22The background of the applicant was revealed by his own evidence, a psychosocial report prepared by a social worker, and some medical records. 23The applicant had never known his father and had been raised to a large degree by his maternal grandmother. At the age of 13 he was placed in foster care. His relationship with the victim began when he was only 16. 24The applicant had had problems at school from a very early stage. He was diagnosed with Attention Deficit Hyperactive Disorder (ADHD) as a child. He was expelled from more than ten schools, and left school permanently when he was in year nine. Throughout his life since then he had worked as a removalist, in a factory, and had done casual delivery work. 25The applicant had been admitted to a psychiatric hospital in 2009, it seems after suffering a psychotic episode. Whilst there he was prescribed Seroquel, an antipsychotic medication. In 2010, he was diagnosed with depression. Whilst in custody awaiting the sentence under consideration he had been prescribed antidepressants. 26The applicant commenced to use prohibited drugs at an early age, and by the date of the psychosocial report he had used a variety of them, though not intravenously. 27At the time of the offence the applicant was drunk and not taking his medication. He had not taken prohibited drugs that day or evening. 28With regard to the offences in Queensland, the applicant gave evidence that he had "just got in with wrong crowd, hit the drugs and alcohol pretty bad".

29Four grounds of appeal have been notified on behalf of the applicant. I shall deal with them in turn.

"His Honour erred by failing to identify and assess the factors relevant to the objective seriousness of the offence" 30Counsel for the applicant submitted that his Honour did not make an assessment of the objective seriousness of the offence. She submitted that all there was in the remarks on sentence was a short summary of the background of the offence and the offence itself. To the extent that features personal to the applicant could or should be classified as objective features, she submitted that they had barely been mentioned at all in the remarks on sentence. 31Counsel for the applicant also invited attention to this Court's decision in R v Ehrlich [2012] NSWCCA 38, in which Johnson J (who was in dissent) said at [86]: "The process of instinctive synthesis to be undertaken by a sentencing court involves the sentencing judge identifying all the factors that are relevant to the sentence and then making a value judgment as to the appropriate sentence in all the circumstances of the case: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 377-378 [51]; Muldrock v The Queen at 1162 [26]. Assessment of the objective gravity of an offence has traditionally been an essential element of the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]. It is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence, which adequately punishes an offender: s.3A(a) Crimes (Sentencing Procedure) Act 1999." 32Counsel for the respondent submitted that his Honour adequately referred to the objective features of the offence, and submitted that the personal attributes of the applicant were not relevant to the objective features of the offence.

Decision 33It is well known that the decision of the High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 brought substantial changes to sentencing in NSW. In the months since it was handed down, there has been a process of this Court working out the precise parameters of those changes. It is not necessary for me to refer to all of the cases that reflect that process. Yang v R [2012] NSWCCA 49 at [28] - [36] helpfully summarises many of them. 34Two aspects have been the subject of debate in this Court: see generally R v Koloamatangi [2011] NSWCCA 288 at [9] - [21]. The first is whether features personal to an offender may be taken into account in assessing the objective seriousness of an offence that is subject to a standard non-parole period. The second is the degree of specificity with which a sentencing court should determine the objective seriousness of an offence that is subject to a standard non-parole period. 35As for the first area of debate, in Muldrock v The Queen, the High Court stated at [27]: "Section 54B(2) and (3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness". Meaningful content cannot be given to the concept by taking into account characteristics of the offender. 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." (footnotes omitted) 36In R v Muldrock; Muldrock v R [2012] NSWCCA 108 at [8], Allsop P (with whom Hoeben JA and Beech-Jones J agreed, Beech-Jones J delivering a separate judgment), determined the objective seriousness of the offence subject to re-sentence "without reference to matters personal to a particular offender or class of offenders." 37In accordance with that recent decision of this Court, I proceed on the basis that features personal to the offender should not be taken into account in assessing the objective seriousness of an offence. That approach accords with sentencing practice before the statutory system of standard non-parole periods began in 2003. Furthermore, so long as sentencing is founded on instinctive synthesis, whereby all relevant objective and subjective features will be accorded appropriate weight, that approach disadvantages neither the Crown nor an offender. 38It may be that, with regard to some features, the dividing line between classification of them as objective or subjective cannot be sharply drawn: for a recent discussion by this Court of the classification of provocation, for example, see Williams v R [2012] NSWCCA 172. However, in this case, I consider that all of the factors personal to the applicant about which complaint is made by his counsel should be seen as subjective, and not relevant to the objective seriousness of the offence. 39It follows that, to the extent that counsel for the applicant points to a paucity of consideration in the remarks on sentence of factors personal to the offender, I shall not deal with that question with regard to this ground. 40As for the second issue, I do not believe that, in order to determine this appeal, it is necessary for me to delve more deeply into the question of the degree to which it is necessary for a sentencing court to determine the objective seriousness of the offence in order to permit the sentencing judge to treat the standard non-parole period as an effective guidepost. 41Since the decision of the High Court in Muldrock v The Queen, the exercise of assessing the objective seriousness of the offence plays a lesser role in sentencing for standard non-parole period offences. However, I accept that it remains desirable for a sentencing judge, having reviewed the objective features of the matter in the remarks on sentence to the degree necessary, to make some assessment of the objective seriousness of the offence. In that regard, I respectfully agree with what Johnson J said in the passage extracted from R v Ehrlich. 42Turning to the circumstances of this matter, his Honour delivered ex tempore remarks on sentence on the same day that all of the documents and exhibits were tendered, the applicant gave evidence, and both counsel addressed. His Honour referred explicitly to the Agreed Facts, and described the contents of that document as "very clear". His Honour reviewed the salient objective features of the offence pithily but sufficiently. As I have said, it would have been desirable for his Honour to express an assessment of the objective seriousness of the offence, if only succinctly. However, in my opinion one is entitled to infer from the recitation of the objective facts, combined with the sentence ultimately imposed, that his Honour could not have regarded the offence as anything other than serious. 43I would not uphold Ground One.

"His Honour erred by failing to identify and assess the factors relevant to applicant's subjective case" 44Counsel for the applicant points to the fact that his Honour made no mention of the contents of the psychosocial report of Ms Gray, or the medical records, in the remarks on sentence. Nor was reference made to the background of the applicant, or his mental problems. Nor, it was submitted, was reference made to the remorse expressed by the applicant on oath, and also evidenced by his immediate confession to the police and his plea of guilty at the earliest stage. It was also submitted that the relationship between the applicant and the victim, and the emotional crisis that the applicant suffered on its breakdown, had not been dealt with adequately. Finally, it was submitted that his Honour had not dealt appropriately with the drunkenness of the applicant at the time of the commission of the offence. 45Counsel for the respondent replied by submitting that, in truth, the mental condition of the applicant did not loom large in the case. It was not said to have played a role in the commission of the offence. She submitted that the disadvantaged background of the applicant underpinned his drug and alcohol use, and that was addressed by his Honour. As for remorse, she submitted that a fair reading of the remarks on sentence shows that his Honour made an assessment of that and took it into account. With regard to the breakdown of the relationship, it was submitted that his Honour was well aware that it was that event that triggered the offence, and referred to it explicitly in the remarks on sentence. As for the role of alcohol, she submitted that it was taken into account, and the approach of his Honour accorded with authority.

Decision 46In the remarks on sentence, his Honour referred to the following subjective features: the feelings of the applicant that led to the offence, the role of alcohol in the offence, the possible role of prohibited drugs, the age of the applicant, and his criminal record. As for the position of the applicant in the witness box with regard to how he felt about the offence that he had committed, I have already extracted two remarks that his Honour made. 47The procedural background is as follows. In oral submissions made very shortly before the remarks on sentence were delivered, counsel then appearing for the applicant did not place great weight on the mental condition of the applicant. Indeed, she explicitly disavowed wanting to explore it. Furthermore, it is noteworthy that no psychiatric or psychological report was placed before his Honour. Nor did counsel then acting for the applicant address at length on the unsatisfactory and unhappy background of the applicant. Indeed, apart from mentioning the limited experience of the applicant with regard to stable relationships and dealing with stress and rejection, the topic was not mentioned. Finally, in the plea in mitigation of counsel, any drunkenness of the applicant at the time of the commission of the offence was barely touched upon. 48I consider that, in the circumstances, his Honour adequately dealt with the subjective features in these ex tempore remarks on sentence. I accept that it would have been preferable for his Honour to refer to the dysfunctional background of the applicant and his mental health problems. But in light of the position adopted by his then counsel about the mental issues of the applicant, the absence of expert evidence about them, and the fact that it was not submitted in the District Court or this Court that the mental issues were directly related to the commission of the offence, I do not think that error has been established with regard to them that should attract intervention by this Court. 49Nor do I consider that the failure to refer to the difficult background and upbringing of the applicant should lead to intervention. 50With regard to the question of remorse, I consider that his Honour adequately dealt with that question in the two parts of the remarks on sentence that I have extracted. The finding that the applicant had adopted a "courageous" course certainly told in his favour. Furthermore, I consider that his Honour's characterisation of these factual aspects was reasonably open on all of the evidence before his Honour. I do not consider that his Honour was bound to make more fulsome or favourable findings. 51As for the role of alcohol, it is well established that the intoxication of an offender at the time of the commission of an offence can be taken into account by a sentencing court: see R v Coleman (1990) 47 A Crim R 306. Whether intoxication is a matter of mitigation or aggravation will depend upon the facts of the particular case. 52In R v Coleman, Hunt J (with whom Finlay and Allen JJ agreed) said at 327: "The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication would therefore be relevant in determining the degree of deliberation involved in the offender's breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character. (I have not intended by those examples to limit the extent to which intoxication may be taken into account: see, generally, Sewell and Walsh (1981) 29 SASR 12 at 14-15; 5 A Crim R 204 at 207.) Where the reason for the offender's intoxication is a self-administered drug rather than alcohol, the cases suggest that that fact may well be more likely to aggravate than to mitigate." 53In BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379, Johnson J (with whom Hodgson JA and Rothman J agreed on this aspect) said at [55]: "Although the issue is excluded in this way at trial [referring to a statutory provision not calling for discussion in this judgment], the intoxication of an offender may be relevant on sentence: R v Coleman (1990) 47 A Crim R 306 at 327; Stanford v The Queen [2007] NSWCCA 73 at [52]-[55]. Certainly, there is nothing in the Crimes Act or the Crimes (Sentencing Procedure) Act, nor any common law principle, which would exclude intoxication being taken into account on sentence in assessing the moral culpability of a s 61I offender. Of course, how it may be taken into account will depend upon the circumstances of the case and the impact of intoxication upon the offender's degree of deliberation and whether it contributes to an offender acting out of character: R v Duncan [2004] NSWCCA 431 at [203]; Stanford v The Queen at [55]. Alcohol is not a licence to commit crime: R v Duncan at [203]." A little later, at [79], his Honour said: "The applicant's intoxication may serve to explain how his judgment was affected, to some extent, to act in this way. However, this is a not uncommon scenario for sexual assault offences and it can provide limited assistance only to an offender on sentence." 54In light of the passage from the remarks on sentence extracted by me above, I do not consider that it has been established that his Honour failed to take the intoxication of the applicant at the time of the offence into account. A fair reading of that passage demonstrates an acceptance that the applicant was drunk; that he may very well have also been affected by illicit drugs; that the latter may have acted in combination with the former; and that that state of affairs provided an explanation as to why the applicant acted in the uncontrolled and extreme way that he did. 55That was an appropriate approach to the question of the intoxication of the applicant, and does not bespeak error on the part of his Honour. 56Speaking generally with regard to this ground, I do not consider that there is a requirement that sentencing judges emphasise in ex tempore remarks on sentence matters that have not been the subject of emphasis in the plea in mitigation made by defence counsel. If defence counsel at first instance makes a decision barely to refer to a subjective factor that may be open on the evidence, or not to refer to it at all, and the sentencing judge follows that lead in ex tempore remarks on sentence, it will seldom be that an appeal to this Court founded on that approach by the sentencing judge will succeed. That is because an appeal to this Court is not "the occasion for the revision and reformulation of the case presented below" to use the words of Johnson J (with whom McClellan CJ at CL agreed on this aspect; Rothman J not expressing any view with regard to it) in Zreika v R [2012] NSWCCA 44. To adopt a different course in this Court would force sentencing judges to refer to all subjective factors whether or not emphasised, or even relied upon, by defence counsel in the plea in mitigation at first instance. That is hardly consonant with the efficient administration of justice. 57I would reject Ground Two.

"His Honour erred in his consideration of the impact of the offence on the victim" 58In order to understand this ground, it is necessary to extract the following portion from the remarks on sentence: "Now as far as the complainant is concerned there is a lengthy report from a social worker. I just want to make it clear, as I have to do unfortunately in cases of this nature, as far as I am concerned, cases of sexual assault have significant effects on the victim. There are two particular ways, they result in significant distrust as far as the victim is concerned in forming relationships, particularly with males if the assailant was a male. The other very broad area that is affected is the confidence or self-confidence of the victim is significantly damaged, they have concerns about their own self-worth, sometimes that is demonstrated by self-harm but there are other ways in which it is demonstrated. There is no satisfactory material yet available to indicate how long those matters may last, I always proceed on the basis that they will continue to be present for a very long time. One of the reasons for that is that this Court does have to deal with assaults of some age and it is notable that victims in those cases are still showing signs of the trauma resulting from attacks that occurred many years earlier. There is no way of knowing whether this will diminish in time if so, to what extent and there is the added concern here that of course there is a child in common between the complainant and the offender and that is just a fact which will trouble I have no doubt the complainant but to be fair, it will also trouble the offender because his acts are bound to have a prejudicial effect on any attempt he might make for contact in relation to the child, that is a matter for another jurisdiction but it is something he has acknowledged and is a consequence that he will have to live with." 59Counsel for the applicant submitted that that extract demonstrates that a substantial portion of the judgment was taken up in discussing the effects of sexual assault on victims. The fact that his Honour did not, in that extracted passage, refer explicitly to the detailed victim impact statement, gives rise to the conclusion, it was submitted, that his Honour took into account "presumed harm" that was irrelevant to the case. 60Counsel for the respondent submitted that that portion of the remarks was about the effects on victims of sexual assaults generally.

Decision 61This Court has held that sentencing judges are entitled to proceed on the basis that serious sexual assaults can be expected to have adverse psychological consequences. Because of that entitlement, care needs to be taken to avoid double counting with regard to the aggravating feature of substantial emotional harm in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999: see, for example, Doolan v The Queen [2006] NSWCCA 29; (2006) 160 A Crim R 54 at [21] - [24], R v Cunningham [2006] NSWCCA 176 at [52] - [55], and King v R [2010] NSWCCA 33 at [33] - [42]. 62Having said that, it would have been preferable for his Honour not to have expressed himself in terms of generalities in this case. A better course would have been to make findings of fact founded on the evidence tendered in the proceedings. In particular, it was undesirable for his Honour to indicate an approach that his Honour "always" adopted with regard to a finding of fact as to how long psychological sequelae will last. 63I consider that this ground may have had some force if there had been evidence that the victim had suffered no psychological injury as a result of the offence, or if there had been no evidence either way. 64However, the victim impact statement contained unequivocal, detailed and undisputed evidence about the significant psychological injuries that the victim had suffered as a result of the offence. As I have shown in the passage extracted from it, the victim impact statement concluded by expressing the opinion that the effects of the offence could last for many years. In short, the actual consequences to the victim of the offence demonstrated by the victim impact statement bore no substantial dissimilarity to the phenomena being described by his Honour. 65In those circumstances, I do not consider that Ground Three has been made out.

"The sentence imposed is manifestly excessive" 66Counsel for the applicant submitted that the objective seriousness of the offence was low and the subjective case compelling. She invited the Court to statistics that she submitted demonstrated that the sentence imposed did not fit comfortably within the range of sentences actually imposed at first instance. She also provided a table of cases that summarised decisions of this Court with regard to s 61I of the Crimes Act, whilst accepting that the facts that can be encompassed by that offence vary widely. 67Counsel for the respondent accepted that the sentence is a stern one, but submitted that is was within the range open to the discretion of his Honour.

Decision 68I consider that the position of counsel for the respondent was soundly based. In particular, the starting point of a head sentence of imprisonment for 6 years, which reflected all of the objective and subjective features except the discount for the utilitarian value of the plea of guilty, was towards the top of the range open to the discretion of his Honour. 69However, I consider that this was a serious example of an offence against the section. The matter can be sharply contrasted with a case where two persons are engaged in intimate contact by consent, and one of them fleetingly goes too far. The digital penetration in this case was not fleeting, and it was preceded by a physical assault upon the victim. Throughout the sexual offence the victim was making her lack of consent abundantly clear and struggling to put an end to the invasion of her body. Most importantly, his Honour found that the offence was an attempt to demonstrate dominance over a young woman who was in truth free to engage in Facebook contact, or any other kind of contact, with whomever she wished. An offence of sexual penetration that is motivated by a desire to dominate the victim, because he or she has failed to comply with the expectations of the offender, will very rarely be anything other than a serious offence. 70Furthermore, the position of the applicant was aggravated by the fact that he was subject to suspended sentences imposed for a number of offences, at least one of which was, on its face, serious. 71I accept that the applicant was drunk at the time of the offence, upset that a woman with whom he had been in a relationship since the age of 16 had rejected him, suffering from mental problems, and had endured a disadvantaged background that had ill-equipped him for emotional challenges such as the one that confronted him that evening. I also accept that he pleaded guilty at an early stage and publicly accepted responsibility for his wrongdoing. But those factors lead me to the view that the head sentence is stern, but neither the head sentence nor the non-parole period is manifestly excessive. 72In short, I do not consider that Ground Four has been made out.

Orders 73The orders I propose are: (1)Leave to appeal granted. (2)Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2012