Tahi BROOKS v REGINA

The application 15 Mr Dhanji, for the applicant, argued the application on a number of grounds: that her Honour had erred in treating the applicant's criminal record as an aggravating factor under s21A of the Crimes (Sentencing Procedure) Act, in failing to have regard to the effect of accumulation of the sentences in setting the non-parole period, and in finding that the offences fell into the worst category. A ground challenging her Honour's assessment of the applicant's credibility was abandoned at the hearing. It was also argued that the sentences, individually and in their total effect, are manifestly excessive. 16 I have concluded that there is substance in the ground concerning her Honour's finding that the offences fell into the worst category. As I consider that the Court should intervene for that reason, I do not find it necessary to deal with the other grounds of the application. However, I should mention in passing the ground that her Honour wrongly treated the applicant's criminal record as an aggravating factor under s21A of the Crimes (Sentencing Procedure) Act. In response to that ground the Crown prosecutor advanced an interpretation of s21A which calls into question a line of authority commencing with R v Johnson [2004] NSWCCA 76. On 6 June 2006, after judgment in this matter was reserved, a five judge bench heard argument about that matter in McNaughton v Regina, and judgment in that case is still reserved. 17 I turn, then, to her Honour's finding that the offences, particularly the sexual assaults, fell into the worst category of offences of their kind. Normally, a judge characterises an offence as falling into the worst category when imposing the maximum sentence for that offence. Her Honour did not sentence the applicant to the maximum term for any of the offences. However, it does appear that her starting point for the offence of aggravated break and enter was the maximum of twenty years. No doubt, the sixteen year term which she imposed was the result of the twenty percent reduction she allowed for the pleas of guilty. Of course, in passing that sentence her Honour took into account the matters on the Form 1, which included a further offence of aggravated sexual assault. 18 The gravity of the offences committed against that unfortunate woman requires no emphasis. Moreover, they were perpetrated by a young man with an unfavourable criminal record, who was on parole in respect of other serious offences at the time. Notwithstanding those matters, I am persuaded that her Honour fell into error in characterising the offences as falling into the worst category. 19 As I have said, her Honour found that the sexual offences were opportunistic, rather than planned. As one would expect, the emotional impact of the incident upon the victim was severe. However, the indignities accompanying the sexual assaults, the applicant's threats by word of mouth and by the presentation of the spanner, the deprivation of the victim's liberty and the physical pain experienced by her fall short of much that this Court has had to consider, from time to time, in other cases. There are also bizarre features of the applicant's behaviour, in particular, his boasting of his "wonderful cock" and his helping himself to a makeshift meal in the kitchen despite the victim's warning that her son was due home, which raise a question about the extent of his insight into the criminality of his actions. However, this was not a matter explored in the psychiatric reports and little significance can be placed upon it. 20 As I have said, none of the charges was visited with the maximum sentence. Nevertheless, the sentences imposed on most of them, after allowance for the applicant's pleas of guilty, disclose that her Honour misapprehended where they lay in the scale of objective criminality. While I have focused upon the sexual offences in dealing with this ground, this is equally true of the sentence in respect of the aggravated robbery. I would not disturb the sentence of four and a half years imprisonment on the third charge, the attempted aggravated sexual assault, but I am satisfied that the other sentences cannot stand. 21 Accordingly, this Court must re-sentence the applicant. The sentences must reflect the seriousness of the offences and the relevant aggravating features, while giving appropriate weight to his relative youth, his background and his protective custody. Like her Honour, I would recognise his pleas of guilty by a reduction of sentence of the order of twenty percent, and I would direct the first sentence to commence on 14 November 2003. I would pass partly cumulative sentences on the other charges, mindful of the principle of totality. 22 I referred at the beginning of these reasons to the standard non-parole periods for the offences of aggravated break and enter and aggravated sexual assault. I would adopt her Honour's approach of passing fixed terms of imprisonment on all the charges except the aggravated break and enter. As to that charge, although the applicant pleaded guilty to it, it is appropriate to have regard to the five year standard non-parole period as a reference point or guide post, in accordance with the principles enunciated in R v Way (2004) 60 NSWLR 168 at [117] ff. In so doing, however, it is necessary to bear in mind that the offence created by s112 of the Crimes Act is one of breaking and entering premises and committing "any serious indictable offence" therein. The expression "serious indictable offence" embraces a wide variety of criminality, and the nature of the serious indictable offence alleged in a particular case must have a significant bearing upon the assessment of the gravity of an offence under the section. In all the circumstances, I am satisfied that a non-parole period in excess of five years is necessary to reflect the criminality of the applicant's offence. 23 I would grant leave to appeal and allow the appeal. I would quash the sentences on all charges but the third, and re-sentence the applicant as follows: On the fifth charge (aggravated robbery), imprisonment for three years from 14 November 2003; On the second charge (aggravated sexual assault - penile penetration), imprisonment for seven years from 14 November 2004; On the third charge (attempted aggravated sexual assault - fellatio), I would confirm the sentence passed by her Honour of imprisonment for four-and-a-half years from 14 November 2005; On the fourth charge (aggravated sexual assault - cunnilingus), imprisonment for five years from 14 November 2006; On the first charge (aggravated break and enter and commit aggravated sexual assault - digital penetration), taking into account the matters on the Form 1, imprisonment for ten years, with a non-parole period of six-and-a-half years, from 14 November 2007. 24 Because of the sentence passed on the first charge, I would decline to set non-parole periods in respect of the other sentences. I would depart from the statutory proportion in setting the non-parole period for the sentence on the first charge because that sentence is accumulated upon the other sentences. The result would be an overall sentence of imprisonment for fourteen years, with a non-parole period of ten-and-a-half years, dating from 14 November 2003. The applicant would be eligible for release on parole on 13 May 2014. 25 HALL J: I agree with the reasons of Hidden J and the orders proposed.