Tafra v R

JUDGMENT

1. THE COURT: The applicant seeks leave to appeal against a sentence imposed upon him by Huggett DCJ (as her Honour then was) on 12 May 2023.
2. On 7 October 2022, just before jury empanelment, the applicant pleaded guilty to two counts of aggravated sexual intercourse without consent, in company, contrary s 61JA(1) of the Crimes Act 1900 (NSW).
3. An offence under s 61JA carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years. The circumstance of aggravation on both counts was the deprivation of liberty.
4. The sentencing judge provided indicative sentences in respect of both counts of 11 years and 4 months with a non-parole period of 7 years. Her Honour then imposed an aggregate sentence of 14 years and 6 months with a non-parole period of 8 years and 6 months. The sentence dated from 7 January 2022 and will expire on 6 July 2036. The applicant is eligible for release on 6 July 2030.
5. The only ground of appeal is that the sentence is manifestly excessive. Although the Notice of Appeal specifies some additional particulars, Senior Counsel for the applicant invited the Court to treat those particulars as submissions relating to the sole ground of appeal.
6. The sentence proceedings took place at the same time as the two co-offenders, Holly Moran and Kaylene Moran. All three were sentenced on the same day. Holly Moran also pleaded guilty to two offences under s 61JA of the Crimes Act. She was sentenced to an aggregate sentence of 12 years with a non-parole period of 7 years.
7. Kaylene Moran pleaded guilty to one offence under s 61JA(1), and another offence of aggravated sexual assault under s 61J of the Crimes Act. She was sentenced to an aggregate sentence of 10 years and 9 months with a non-parole period of 6 years and 3 months.
8. For the purposes of the sentencing there were agreed facts. The applicant does not seek to challenge any of the factual findings made by the sentencing judge.
9. The acts constituting the sexual intercourse without consent were undertaken by Holly Moran and Kaylene Moran. The applicant was sentenced on a joint criminal enterprise basis. As found by the sentencing judge, he was the instigator of the events which led to the offending conduct.

Circumstances of the offending

1. At around 2:45am on 5 September 2020, three persons (two men and the victim) attended at an address in Armidale (which was known to be the applicant's residence) to purchase methamphetamine from the applicant. At that time the victim was a daily user of methamphetamine.
2. Having attended at the address, one of the persons accompanying the victim stole approximately 14 grams of methamphetamine from the applicant before driving away in company with the others on the New England Highway.
3. The applicant pursued them. He was able to catch them and force their vehicle off the road at which point the victim alighted from the vehicle. The two men drove off and the applicant continued to pursue them until their vehicle rolled several times.
4. At the applicant's request, three other persons attended that scene and were able to recover some of the stolen methamphetamine. The two men were then taken to another residence in Armidale.
5. The victim was also then located and taken by others to the same residence. Whilst at the residence, the two men were detained and questioned about the missing drugs. However, they were able to escape.
6. At approximately 5:00am, the applicant asked Daniel Smith to come to the place where the car had rolled. He asked Mr Smith if he "had wheels" and asked him to find someone like Holly Moran or Kaylene Moran who had a car. He spoke to Mr Smith again at 5:20am, stating: "I need to have someone come out here. I'm gonna need extraction at the very least … There's still six and a half grams sittin [sic] there somewhere … Come out right now."
7. Mr Smith must have contacted Kaylene Moran as she rang the applicant at 10:44am. The applicant told Kaylene Moran he was "literally hunting people" in the area around Anthony Westaway's place.
8. At around 11:30am, the applicant then asked another person, Montana Brazier, if she could pick up the victim. Thereafter, Ms Brazier and her partner, Kristopher Turner, picked up the victim from Mr Westaway's premises.
9. They took her to Katherine Murray's house to "have a sesh". There followed a number of phone conversations between the applicant and a number of other people, with the applicant attempting to ensure that the victim remained at Ms Murray's house and liaising with both Holly Moran and Kaylene Moran to pick him up and take him to Ms Murray's house.
10. The applicant indicated at this time to at least Holly Moran that it would be necessary to get the drugs out of the victim, demonstrating his belief that the victim had secreted some of the stolen drugs in her body.
11. At 1:38pm, the applicant sent a text message to Ms Brazier, who was at Ms Murray's house, stating "sending extraction team so don't let her get too nervous but whatever you do, don't let her go".
12. At around 2:08pm, the applicant called Mr Smith suggesting he was still "sorting shit out" and that he had recovered half of the "stuff" and worked out where the other half had gone. Again, he referred to sending the extraction team around to get it out of the victim.
13. At some time after 2:41pm, Holly Moran and Kaylene Moran arrived at Ms Murray's premises. At this time the victim was in the bedroom. The applicant did not go into the bedroom but remained outside, having an argument on the phone with his then girlfriend.
14. Holly Moran and Kaylene Moran then went into the bedroom where the victim was being detained. At that time, Ms Brazier was also in the bedroom but she left shortly thereafter.
15. Holly Moran first confronted the victim with a knife. Although the victim said that she did not have any drugs, Holly Moran demanded that she "give her the shit". The victim denied having anything on her. Holly Moran then cut the victim's upper thigh with the knife causing a scratch which bled. The offence of assault occasioning actual bodily harm in company was on the Form 1.
16. Holly Moran and Kaylene Moran then spoke briefly before Holly Moran said, "it's up her cunt". It is agreed between the Crown, the applicant and Kaylene Moran that Holly Moran then cut the shoulder straps on the victim's body suit and yelled at her to get naked, ripped her clothes off and pushed her onto the bed. Holly Moran only agrees that she told the victim to remove her clothes and the victim then complied and got onto the bed.
17. Holly Moran then threatened her, pointing her knife towards the victim's vagina screaming "get it out, get it out". The victim was crying and felt she had to comply. She placed her fingers inside her vagina and pulled them out three or four times, showing that nothing had been extracted. Holly Moran then insisted it was further inside her vagina.
18. The victim used her hands to open her vagina in their direction, telling them to look inside. Kaylene Moran did so with the torch. She then put one of her ungloved hands inside the victim's vagina. The victim was crying and felt immense pain and felt her vagina stretching. Kaylene Moran then moved her hand around. This conduct constituted count one.
19. Holly Moran left the room and told the applicant and Ms Murray that there were no drugs inside the victim's vagina. Ms Murray did not accept this and told Holly Moran to make the victim squat and cough. Holly Moran did so, making the victim squat and cough for five minutes but nothing was expelled.
20. Holly Moran then demanded the victim get onto her hands and knees. The victim complied. Holly Moran yelled "it's in her ass". She demanded the victim put her fingers inside her anus to remove the drugs. The victim complied but nothing was expelled. After this the victim was told to remain on the bed on her hands and knees.
21. Kaylene Moran then put on a set of blue rubber gloves and positioned herself behind the victim. Kaylene Moran was holding a 15 to 20 cm piece of thick bent wire. Kaylene Moran used her hands and the wire to pry open the victim's anus and used her mobile phone to look inside. She inserted the wire into the anus causing significant pain. Nothing was found and after a couple of minutes Kaylene Moran removed the wire. This conduct constituted count 2.
22. Holly Moran then said, "she must have swallowed it". The victim was instructed to stick her hands down her throat. She complied. Kaylene Moran then pushed her own fingers down the victim's throat. The victim could taste and smell her own faeces on Kaylene Moran's gloves which caused her to immediately retch. There followed a period of yelling. Holly Moran punched the victim in the stomach two or three times before punching the side of her head. After that time Holly Moran left the room. Kaylene Moran then said to the victim "[s]is, just admit it. They're gunna [sic] really hurt you. Don't you understand this?"
23. Holly Moran returned to the room and punched the victim's head approximately three or four times, causing her to fall to the floor and her vision to blur. Holly Moran then got on top of the victim and punched her head several times before Kaylene Moran pulled Holly Moran away.
24. Kaylene Moran and Holly Moran then took the victim away from the house and left her on the New England Highway. She walked to a nearby café. Although she did not want the police called, the police attended. She was taken to hospital and declined treatment. She declined to cooperate with the police at that time but on 5 January 2021 she made a formal complaint to the police.
25. All these matters were the subject of agreed facts and findings by the sentencing judge.

Findings of the sentencing judge

1. The sentencing judge found that each of the offences, that is, the two s 61JA(1) offences in respect of the applicant and Holly Moran and the s 61J(1) offence in respect of Kaylene Moran were well above the mid-range in assessing objective seriousness.
2. The sentencing judge accepted that the applicant instigated the events that resulted in the offences being committed. He recruited Holly Moran and Kaylene Moran for the specific purpose of conducting an internal search of the victim using force in order to recover the drugs that he suspected had been stolen from him.
3. Although the applicant did not participate in the physical elements of the offences and was not inside the room, he was present throughout the offending and stood to gain from the offending.
4. The sentencing judge accepted that the applicant anticipated a degree of physical violence and intimidation would be required. He knew the lengths the Morans would go to and that is why he recruited them.
5. Whilst accepting that each of the offenders were jointly responsible for the acts of the co-offenders in carrying out the joint criminal enterprise, the sentencing judge observed, "it cannot be overlooked that the Morans performed the physical acts however under the instigation of the applicant".
6. Her Honour found that the roles of Holly Moran and Kaylene Moran were on par but slightly less than the applicant, stating that he was the one who instigated the offending, and he was the person with something tangible to gain and the offences would not have happened but for his direction.
7. Her Honour said that the finding that each offence was well above the mid-range was based on the following matters. 1. Each act of sexual penetration was motivated not by sexual gratification but an attempt to use force to recover drugs suspected of being stolen by the victim and secreted internally. Her Honour found that this was a very serious and reprehensible motivation. 2. The context in which the offences occurred was that the victim was involved in the drug culture in Armidale and Uralla and had attended the applicant's residence to purchase drugs, a quantity of which had been stolen. 3. Each offender had actual knowledge that the victim was not consenting, and any compliance on her part was the result of fear and terror to avoid being harmed. 4. Whilst the applicant was not inside the room whilst the offences were committed, he instigated their commission and engaged in not insubstantial planning, including recruiting the Morans to be the "extraction team" tasked "to pull the shit out of her cunt" in circumstances in which he believed that "white chicks are so terrified of black people". 5. Count 1, being the introduction of Kaylene Moran's bare hand in the vagina, caused the victim to feel immense pain. It was not momentary and occurred in circumstances where a knife had been produced. The victim's clothing had been removed. She was crying and forced to get on the bed whilst naked. It was accompanied by further humiliation and degradation by virtue of the phone light being used to inspect part of her genitalia and she being required to squat whilst naked and cough for around five minutes. 6. Count 2 involved the penetration of the victim's anus by a gloved hand and the insertion of pieces of bent wire. Again, a mobile phone was used. 7. Each offence was essentially an act of violence, involving humiliation and degradation, beyond that which might be considered inherent in any non-consensual act of sexual penetration. The violence was both actual and threatened and was ongoing. 8. An element of the offences is that the particular offender was in company with other persons. 9. An element of the offences committed by the applicant (and Holly Moran, although not Kaylene Moran) was that the victim was deprived of her liberty. 10. The duration and circumstances of the deprivation of liberty are relevant. The victim was deprived of her liberty between 1:00pm and 7:00pm.

Findings as to the applicant's subjective circumstances

1. The sentencing judge made a number of findings common to each of the offenders, that is, the applicant, and Holly Moran and Kaylene Moran, including that: 1. each suffered instances of sexual abuse and trauma as a child; 2. each was suffering from mental health impairments or conditions which contributed to the offences in a material way; 3. the psychological conditions which each suffered would make their time in custody more onerous; 4. having regard to those mental health issues less weight should be given to deterrence than would ordinarily arise; 5. each had suffered as a result of the Covid-19 restrictions imposed in correctional facilities; 6. each had a criminal record in the main being drug related offending but nothing like the type of conduct involved in this offending; 7. the offences were committed while each offender was using drugs; 8. there should be a finding of special circumstances to ensure that each offender had a longer period on parole to facilitate their rehabilitation; and 9. each offered a plea of guilty at some time which facilitated the administration of justice and meant the victim did not have to give evidence.
2. As far as the applicant is concerned, the sentencing judge made the following additional observations. 1. Whilst the applicant came from a stable home and a good environment, he was sexually abused on several occasions. His behaviour in high school deteriorated and he became disruptive, disobedient, disrespectful and was truanting. 2. At the age of 12 he ran away to spend time with a female who was 18 or 19. 3. His offending and drug use commenced in his teens. 4. He had been involved in a number of relationships but had persistent difficulties stemming from a fear of abandonment and difficulties with trust. 5. He had been diagnosed with a borderline personality disorder, PTSD and chronic polysubstance abuse disorder. 6. At the time of the offending, he was feeling suicidal. 7. Since being admitted into custody he had been assaulted on two occasions. 8. He said he has been drug-free since entering custody. 9. His criminal history related mainly to his drug use. 10. At the time of this offending, he was involved in the supply of prohibited drugs. He had been sentenced in relation to those drug-related offences in December 2021 for a total term of 4 years imprisonment to date from 7 October 2020 and to expire on 6 October 2024, with a non-parole period of 2 years and 6 months.

Manifest excess

1. On an appeal based on manifest excess the applicant must demonstrate that the sentence was "unreasonable or plainly unjust." (Dinsdale v The Queen (2000) 202 CLR 321 ("Dinsdale")) at [6] per Gleeson CJ and Hayne J and Markarian v The Queen (2005) 228 CLR 357 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ).
2. In Dinsdale, the Court (per Gleeson CJ and Hayne J) said at [6]: "Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non‑custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case."
3. A finding of manifest excess is thus a conclusion. It is a conclusion that the sentence imposed is plainly unjust or unreasonable. There is no formula to be applied in determining whether the sentence is unjust and it is not necessary that there be any specific error identified.
4. Further, the fact that, if it be so, this Court might have exercised the sentencing discretion in a manner different to the approach taken by the sentencing judge does not lead to success on a manifest excess ground (see Lowndes v The Queen (1999) 195 CLR 665 at [15] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
5. The applicant points to the following matters as leading to the conclusion that the sentence was manifestly excessive: 1. the indicative sentences determined by her Honour for each count were too high; 2. the degree of accumulation of the indicative sentences implicit in the aggregate sentence was too great; and 3. there is disparity with the sentences imposed on Holly Moran and Kaylene Moran.
6. The applicant does not seek to challenge any of the factual findings made by the sentencing judge or her Honour's determination of matters such as objective seriousness. The applicant does not seek to challenge any of the findings as to the applicant's subjective circumstances. Further, the applicant does not pursue any parity appeal or pursue any other ground of appeal based on specific error.
7. There can be no appeal from the indicative sentences (being 11 years and 4 months with a non-parole period of 7 years for each count) (see, eg, PN v R [2024] NSWCCA 86 at [48] per Wilson J, Chen and Huggett JJ agreeing). The suggestion that the indicative sentences are too high appears to be based on the proposition that the applicant was not motivated by sexual satisfaction and that there was nothing in his record suggestive of sexual deviancy or violence towards women.
8. The applicant submits that s 61JA is directed principally to restraint of non-consensual sexual gratification but as is evident from the conviction of the applicant and the co-offenders, there is nothing in s 61JA which suggests either that offences not motivated by sexual gratification do not fall within s 61JA or should be viewed as less serious offending. Sexual intercourse is defined in s 61HA. It includes penetration by any object manipulated by another person (s 61HA(a)(ii)).
9. In the Court's view, whilst the sentence might be viewed as stern, it is not plainly unjust. That is for the following reasons. 1. Both counts carry a maximum penalty of life imprisonment and a standard non-parole period of 15 years. 2. Whilst the applicant may not have known precisely what the Morans were doing inside the room whilst he was outside, he knew that they would be doing what was necessary to extract the drugs that he believed were being held by the victim. Having regard to the language he used (agreed to in the statement of agreed facts), he anticipated that it would be necessary to extract the drugs from the victim's vagina. It may not have been established that he knew that wire would be used on the victim's anus, but at the very least, he expected the Morans would do whatever was necessary to obtain the drugs, even if it meant "cutting it out of her" as he is agreed to have said. He selected the Morans for the very purpose of extracting the drugs out of the victim. He tasked them to do what was necessary to recover his drugs. 3. The victim was exposed to violence, humiliation, degradation and deprivation of liberty as part of the offending conduct. She was made to strip naked, lie on the bed and present her genitalia for inspection and then subjected to the violent invasion of her body in the manner already described arising under both counts. Both offences involved circumstances of aggravation. 4. The offending conduct must have involved the infliction of pain and placing the victim in a situation where she was terrified. It had the potential to inflict serious damage on the victim. These were offences which involved the use of significant force and violence. 5. The matters raised by the applicant do not of themselves lead to the conclusion that the indicative sentences were "too high". 6. The aggregate sentence must reflect the total criminality involved. The fact that both counts happened over a short space of time does not mean that there should be no accumulation or that there should be a very limited level of accumulation. The level of accumulation is a matter for the sentencing judge (LG v R [2012] NSWCCA 249 at [24]; Franklin v R [2013] NSWCCA 122 at [43] ("Franklin")). In Franklin the Court per Hoeben CJ at CL (Hall and Davies JJ agreeing) explained at [44]: "There is no rule that sentences for offences committed on the same day, or as part of the same criminal enterprise, should be served concurrently. A sentence should not be 'concurrent simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct' (R v Jarrold (Howie J at [56]). The question to be asked is whether the criminality of the offence can be encompassed in the criminality of the other offence (Cahyadi v R). If not, the sentence should be at least partially cumulative, otherwise there is a risk that the sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the offences can be regarded as part of a single episode of criminality (Cahyadi v R at [27])." 1. The fact that Holly Moran and Kaylene Moran received lesser sentences is reflective of the sentencing judge's findings both as to the roles they played and their subjective circumstances. Pointing to their slightly lesser sentences does not establish that the applicant's sentence is plainly unjust. Some of the applicant's subjective circumstances were similar to those of the Morans but some are different. Further, the sentencing judge placed importance on the role of the applicant. He was not just the instigator. He was the organiser, planner, arranger and instructor. He wanted the Morans to do what was necessary to extract the drugs. The victim would not have been detained or subject to such acts of violence and insult to her body without the applicant arranging for it to occur. 2. Nor does reference to so called comparable cases assist the applicant. Whilst reference is made to other cases, care must be taken in using what has been done in other cases to determine a range. 3. As was held recently by Gleeson JA, (with Rothman and Cavanagh JJ agreeing) in Shalida v R [2024] NSWCCA 55 at [91]-[92]: "Care must be taken in using what has been done in other cases: Hili at [53]. Differences in the facts and circumstances affects the utility of the comparative exercise. As stated in Hili, 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' and past sentences 'stand as a yardstick against which to examine a proposed sentence': Hili at [54] citing Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305] (Simpson J); Moodie v R [2020] NSWCCA 160 at [80]-[89] (Bell P). This Court has frequently said that it is not to the point that the sentence under challenge might be described as severe, whether by reference to other cases or sentence statistics, or whether this Court would have imposed the same or some other sentence. The question is whether the sentence under challenge exceeds the bounds of proper sentencing discretion: Webber v R [2014] NSWCCA 111 at [46] (Fullerton J, Hoeben CJ at CL and Adamson J agreeing)." 1. In submissions, the applicant referred to a number of other cases including R v MAK [2005] NSWCCA 369, Haines v R [2012] NSWCCA 238 and Imrak v R; Dagdanasar v R [2021] NSWCCA 178 but none of those cases can be viewed as true comparators. The facts and circumstances of each of those cases is quite different. Reference to those cases only highlights the caution the Court must exercise in determining whether a sentence is plainly unjust, having regard to other cases. Indeed, the applicant ultimately accepted that there really were no comparable cases having regard to the nature of the offending. 2. Each of the other examples relied upon by the applicant are cases of very serious offending but the applicant's offending could hardly be described as anything other than very serious offending.
10. For these reasons, the applicant has not established that his sentence was manifestly excessive.
11. The orders of the Court are as follows. 1. Leave to appeal is granted. 2. The appeal is dismissed.

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