Weatherall v R

Judgment 1HOEBEN CJ at CL: Offence and sentence The applicant was convicted after a trial by jury of two counts of aggravated sexual intercourse in company (deprivation of liberty before offence), contrary to s61JA Crimes Act 1900. The offences carry a maximum penalty of life imprisonment and a standard non-parole period of 15 years. 2On 20 September 2007 the applicant was sentenced by Woods QC DCJ to an overall term of imprisonment of 15 years with a non-parole period of 10 years. With respect to count 1, the applicant received a sentence of imprisonment with a non-parole period of 8 years with an additional term of 5 years. With respect to count 2, the applicant was sentenced to imprisonment with a non-parole period of 8 years with an additional term of 5 years. The sentence in respect of count 1 was to commence on 2 December 2005 and that in respect of count 2 on 2 December 2007. The total non-parole period will expire on 1 December 2015 and the balance of term on 1 December 2020. The applicant seeks an extension of time within which to apply for leave to appeal against the severity of those sentences. 3The applicant relies upon the following grounds of appeal: Ground 1: The sentencing judge erred in his approach to the standard non-parole period legislation in the light of the principles identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Ground 2: The sentences imposed were manifestly excessive, whether taken: (a) individually; and/or (b) in combination. 4The Crown does not accept that "Muldrock error" occurred. In the alternative, if "Muldrock error" is found to have occurred, the Crown does not accept that pursuant to s6(3) of the Criminal Appeal Act 1912 (NSW) any lesser sentence to that imposed by his Honour is warranted in law. In relation to "Muldrock error", this judgment should be read with Abdul v R [2013] NSWCCA 247 at [19] - [28]. The Crown opposed the granting of an extension of time. Factual background to the offences 5The applicant, together with his co-offender King, was convicted in relation to events which occurred at Eveleigh Street, Redfern. There on or about 24 November 2005 the applicant was the leader of a group of men who prevented the victim, RK, from leaving a terrace house in order to have sexual intercourse with her without her consent. 6The victim was a drug addict and had attended the area looking to obtain heroin to support her habit. She had been for some weeks a regular visitor to "The Block" area of Redfern, obtaining heroin to feed her addiction. The applicant and King were either small scale drug dealers or knew where to obtain heroin. 7The victim's evidence, which the jury must have accepted, was that having been detained in the Eveleigh Street terrace, the applicant said to her "You're staying here. You're going nowhere." He took her into a room with a single bed behind the door and started to pull her clothes off. As he did this, he unzipped his own pants, took his penis out and forced the victim to perform oral sex on him while she was sitting on the bed. 8He made her do this by grabbing her hair and twisting it around his hands so that she could not move. He pushed her head up and down on his penis. He was saying things like "Oh you like that don't you?". At the time she was aware that there was someone else in the room, sitting on a chair on the right side of the room watching what was happening. As the applicant was forcing her to perform oral sex, the victim described how he was trying to make her gag, pushing his penis "so far down my throat that I couldn't breathe ... he just kept forcing, really forcefully". The applicant ejaculated onto a towel. 9This act was count 1 on the indictment. The victim noticed at the time she was made to perform oral sex that the applicant's penis had "lumps" on it, being quite large and obvious and extending for about three-quarters of its length. 10After this the victim became aware of someone other than the applicant, who had come up and sat on the bed. That man then lay back on the bed and unzipped his pants, putting his hands behind his head. The victim described being pulled over by someone else again, who had grabbed her hair and positioned her between this other man's knees. The victim's evidence was that this other man was "pushing", he had a fist full of her hair and was "just forcing my head up and down on this man's penis as well". She described a number of other people in the room, including the applicant, whom she said was there almost the whole time and a young person about 16 years old. King was the person on whom the victim was forced to perform oral sex on this occasion. These were the facts relating to count 2 and the applicant was sentenced as a principal in the second degree in relation to that offence. 11While these offences were taking place, the victim described conversations she heard the applicant having with others. She said that the applicant was on the phone and was telling other people to "come over and have a go" ... "there's a girl here, have a go" ... "bro come over quick". 12The victim was moved from the bedroom to an adjacent room. Present in that room was an Islander male, Qoro, together with the younger unidentified man who had been in the bedroom. Qoro forced her to perform oral sex on him. During that act, the younger man attempted to force her head onto his penis. 13After this episode, she was released by another man who gave her money to get home. She left and a good samaritan found her distressed and crying outside her home in Eveleigh Street and took her inside. The victim made immediate complaint to the good samaritan who reported the matter to the police. 14Initially the applicant and Qoro faced trial before Judge Berman SC and a jury on 28 August 2006. For reasons not relevant, the jury was discharged in relation to the applicant. Qoro, however, was convicted of aggravated sexual assault in company (deprivation of liberty before offence) and on 27 April 2007 was sentenced to 14 years imprisonment with a non-parole period of 10 years. Qoro's appeal from his conviction and sentence was dismissed (Qoro v R [2008] NSWCCA 220). 15A further trial commenced on 14 May 2007 before Woods DCJ QC and a jury in which the applicant and King were jointly tried in relation to an indictment containing two counts. As already indicated, the applicant was convicted of both counts. King was convicted of one such count being the second count on the indictment. King was sentenced to imprisonment for 13 years with a non-parole period of 8 years. King appealed against his sentence and on 10 March 2010 this Court delivered judgment granting an extension of time for leave to appeal but dismissing the appeal (King v R [2010] NSWCCA 33). Applicant's Subjective Case 16In relation to his subjective case, the applicant was aged 31 at the time of the offences and 33 when sentenced. He had prior offences for robbery and wounding but no offences were recorded against him for the seven years before these offences. Both the applicant and the victim were of Aboriginal background. In that regard, the Court took account of the problems the applicant had experienced while growing up and concluded that his frequenting of "The Block" at Redfern was related to drug and alcohol abuse but was also a place of "Aboriginal gathering in Sydney where they were unlikely to be taunted racially". 17The applicant gave evidence that while in custody he was in "protection" but that upon sentence, he expected to be placed in Limited Association or Non Association Protection, as a result of the nature of the offences. The applicant gave evidence that even if he were not placed in protective custody, he would seek it himself because of the real risk of physical harm to himself arising from the nature of the offences. 18While in custody, the applicant had managed to obtain a position of responsibility as the "Koori" delegate, concerned with the welfare of Aboriginal inmates. By reference to the support which the applicant continued to enjoy from his family, and the material regarding the applicant's post-offence conduct while in custody, the sentencing judge found that he had "reasonable prospects of rehabilitation in due course". 19The sentencing judge determined that special circumstances existed in the applicant's case, being: (i) The applicant's background of disadvantage. (ii) The need for the applicant to undertake drug and alcohol counselling. (iii) The applicant's need for an extended period of post-release supervision. 20The sentencing judge made the following further findings of fact. He found that the victim had voluntarily attended the house with the idea that she could somehow get drugs there. The applicant and the co-offenders committed the offences because they regarded the complainant as "an easy mark" because she was "vulnerable and desperate". They took advantage of her and regarded it as unnecessary to provide her with drugs or seek consent prior to sexual intercourse with her. His Honour found that the offenders were probably emboldened by the assumption that she would either not complain or if she did, would not be believed. 21All the offenders had been drinking for a significant amount of time before the offence. There were a number of men in the house. His Honour found these to be crimes of opportunity and not pre-planned or premeditated. The applicant was found to be the ringleader "in that he encouraged several other men to participate in the crimes" and was the "main promoter of the misconduct proven in the trial". This was so notwithstanding that the other two offenders sentenced, King and Qoro, were willing participants. Background to this application 22After having been sentenced on 20 September 2007, the applicant filed a Notice of Intention to Appeal in respect of his conviction and sentence on 9 October 2007. On 17 September 2009 the applicant was informed that he did not qualify for legal aid for an appeal. 23On 12 June 2013 the applicant was advised that his case had been reviewed by Legal Aid NSW's Standard Non-parole Period Sentence Review Team and he was invited to complete a further application for legal aid. In due course he did so which resulted in this matter coming before the Court. Delay 24The sentence was imposed on 20 September 2007. The Notice of Intention to Appeal lapsed on 9 April 2008. Accordingly, an extension of time of over 6 years is sought for this application for Leave to Appeal Against Sentence. 25The competing submissions in relation to delay, finality and the Court's consideration of those submissions are set out in Abdul v R at [31] - [53]. Those submissions and the Court's conclusions in relation thereto are incorporated into this judgment. 26The extent of the delay is substantial and the explanation for it is not compelling. Having considered the circumstances relating to the applicant's sentence, Legal Aid NSW rejected his application as having insufficient prospects of success. The only change to those circumstances is the decision in Muldrock. The principle of finality stands against an extension of time, as does the potential for further psychological suffering by the victim. This latter consideration is a matter of considerable significance, given the facts relating to this offence. 27In those circumstances, if "Muldrock error" is established and it is necessary for this Court to re-exercise the sentencing discretion, the question of whether "substantial injustice" would follow if an extension of time were not granted is determinative. None of the other factors identified in the decided cases favour the granting of an extension of time. Was there "Muldrock error"? 28The applicant submitted that his Honour's sentencing discretion miscarried by reason of him: (a) Giving determinative significance to the standard non-parole period. (b) Adopting a two-stage approach to sentencing. (c) Determining the sentence imposed on the basis that the standard non-parole period had an application to an offence within the mid-range of objective seriousness, following conviction after trial, unless there were reasons to depart from it. 29The applicant noted that his Honour discussed what the legislature meant by the expression "mid-range of objective seriousness" and found problems whichever way he approached its interpretation. It was his Honour's conclusion on that issue which the applicant submitted demonstrated "Muldrock error". "The approach I adopt is this: in my view each of these offences justifies a non-parole period significantly below the standard non-parole period of 15 years because it was in the words of s21A(3) of the Crimes (Sentencing Procedure) Act "not part of a planned or organised criminal activity". Rather, it was a fortuitous event which occurred because of the random chance that the complainant turned up at [the premises] when there was a drinking session in progress, and advantage was taken of her. Although the event occurred in company for the purposes of s61JA, the "company" was a party of drunken louts, not "organised criminal activity". As nasty and violent as it was, it was not "organised". Either the objective seriousness of the offence is reduced by this consideration such that it falls below the "middle range of objective seriousness" and is not a "mid-range" offence at all, so that the court may therefore set a shorter non-parole period than the standard non-parole period; or it falls within a fairly broad range of offences which are of middle range of objective seriousness, but under s53B the court may set a shorter non-parole period, provided the reasons for doing so are recorded consistently with s54B(4). Whichever approach is taken, I would reach the same result. It is proper for me to reduce the non-parole period I will impose in sentencing on each count and I intend to do so. (ROS 17.9 - 18.8) 30The applicant submitted that the reference at the end of the quoted passage showed that the sentencing judge gave determinative significance or primacy to the standard non-parole period. He submitted that this was indicative that his Honour started with the standard non-parole period and then adjusted it to take into account other factors. 31I am not satisfied that "Muldrock error" has occurred, as submitted by the applicant. Even if it has occurred, it is clear from the structure of these sentences that it was an error of process only, not a material error. The effect of his Honour's reasoning was that the standard non-parole period simply did not apply and his Honour effectively ignored it. 32The observations of Davies J (with whom Whealy JA and Rothman J agreed) in Butler v R [2012] NSWCCA 23 have resonance in relation to this case: "26 ... Merely showing that a sentencing judge sentenced pre- Muldrock following the dictates of Way will not be sufficient to demonstrate error. What should be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error that this Court must intervene. Ordinarily this might occur in cases where an applicant is found guilty by a jury, with the result that the sentencing judge will have considered that a two-stage process must be applied and that the standard non-parole period is mandatory unless factors can be found to justify a variation from it. It is far less likely that intervention will be required from this Court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non-parole period as simply a guideline or yardstick." 33In Essex v R [2013] NSWCCA 11 Bellew J (with whom McClellan CJ at CL and Rothman J agreed) said: "30 ... when considering whether or not such an error has been established, it is necessary to consider the reasons of the sentencing judge as a whole." 34In KG v R [2012] NSWCCA 10 Basten JA (RS Hulme and Schmidt JJ agreeing) said: "20 Had the trial judge given any significant weight to the standard non-parole period, it may well be he would have erred. However, it does not appear that it had significant weight in the circumstances of the case. The standard non-parole period was seven years; the starting point for his calculation of the overall sentence was more than two years below the standard non-parole period; both the sentence and non-parole period imposed were so far below the standard non-parole period that it is not possible to infer that the standard non-parole period was given any significant weight in the exercise of sentencing. This ground is without substance." 35In the present case, his Honour summarised the facts by reference to the victim's evidence at trial and made findings of fact, some of which were quite favourable to the applicant. He made reference to aggravating and mitigating factors in relation to the applicant. He took into account the applicant's subjective features. His Honour then turned to the applicable legislation, referring specifically to the maximum penalty of life imprisonment, and to the standard non-parole period. His Honour next determined an appropriate sentence for each count, found special circumstances and set out what he regarded as an appropriate level of accumulation. 36This is very much the process of "instinctive synthesis" described by McHugh J in Markarian v The Queen [2005] HCA 25; 228 CLR 357 which was expressly approved in Muldrock. His Honour did not consider that it was mandatory to impose the standard non-parole period. On the contrary, he reasoned in such a way that the standard non-parole period did not apply. In reality, his Honour was doing exactly what was required of him by both Markarian and Muldrock. 37There are a number of decisions of this Court that post-date the decision in Muldrock to the effect that it is not an inappropriate exercise for a sentencing judge to make an evaluation of the objective seriousness of an offence (Zarakas v R [2013] NSWCCA 144 at [35]). In particular, his Honour did not "attribute mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period", nor commence with the question of whether there were reasons for not imposing the standard non-parole period, nor adopt a two-stage approach: FP v R [2012] NSWCCA 182 at [318] per McClellan CJ at CL (Schmidt and RA Hulme JJ agreeing). 38A fair reading of the remarks on sentence as a whole indicates that his Honour in fact engaged in that process of "instinctive synthesis". To the extent that he may have erred in his overall discussion of the standard non-parole period and the legislation giving rise to it, it was no more than an error of process and had no material effect on the sentences imposed. 39For the above reasons, I am not satisfied that "Muldrock error" has been established. That being so, Ground of Appeal 1 has not been made out. 40If I am wrong in that finding, and it is necessary to determine pursuant to s6(3) of the Criminal Appeal Act whether a lesser sentence was warranted in law, I am not so satisfied. 41In relation to objective seriousness, the finding by the sentencing judge that the offending was below the mid-range of seriousness for an offence of this kind was particularly generous. Were I re-exercising the sentencing discretion, I would have found the objective seriousness of the offence to be significantly higher. 42Even allowing for the subjective features of the applicant's case, particularly the difficulties associated with his childhood and background, the criminality of this offence was substantial. The victim was detained and sexually violated while others watched over a sustained period of time. As the ringleader and promoter of the offending, the actions of the applicant were particularly callous, not only in relation to what he personally did to the victim, but in summoning others to participate in her further degradation. In my opinion, no lesser sentence was warranted in law than that passed by the sentencing judge. Ground 2: The sentences imposed were manifestly excessive, whether taken: (a) individually; and/or (b) in combination. 43Since "Muldrock error" has not been made out, it should be noted that when considering this Ground of Appeal, different considerations apply to those which would have applied had Ground 1 been made out. Before there can be any consideration of re-sentencing in relation to Ground of Appeal 2, error on the part of the sentencing judge has to be demonstrated. 44In oral submissions, counsel for the applicant did not challenge the individual sentences. What he challenged was the level of accumulation. He submitted that accumulating the sentences by 2 years was excessive. 45He submitted that the offences occurred within a very short period of time of each other and that the applicant was found to be a principal in the second degree in relation to the second offence. Counsel conceded that there may have needed to be some accumulation, but that the gravity of the second offence was comprehended by the sentence imposed on the co-offender. He submitted that if it were not, those sentences would be inadequate because both of those persons attacked the victim who already had her liberty deprived and had suffered the first outrage (AT 6.17). 46Counsel for the applicant did not submit that the sentences should have been entirely concurrent, but that the extent of the accumulation was excessive. 47Once some level of accumulation is conceded, its extent was very much a matter of discretion. In that regard, I adhere to what I said in Franklin v R [2013] NSWCCA 122 (Hall and Davies JJ agreeing): "42 As senior counsel for the applicant appreciated, there is no general rule of law that determines whether a sentence must be concurrent or consecutive: Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 per Howie J at [47]. The decision is a discretionary one. The overarching principle was enunciated by Howie J in R v Jarrold [2010] NSWCCA 69 at [56] where he said that concurrency should not be imposed: "... simply because of the similarity of the conduct or because it may be seen as part of one course of criminal conduct ... The question to be asked is, can the sentence for one offence encompass the criminality of all the offences?" 43 As this Court has said on many occasions, and as was said again in LG v R [2012] NSWCCA 249: "24 ... the decision as to whether to accumulate in respect of multiple sentences is fundamentally an exercise within the discretion of the sentencing judge. As Simpson J observed in R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 at [7] "There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong." 25 The issue of totality, particularly in a case involving sexual offending, was discussed by this Court in R v MMK [2006] NSWCCA 272; 164 A Crim R 326 at [13] where Spigelman CJ (Whealy and Howie JJ agreeing) stated: "In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending ... This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion... The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman [2002] NSWCCA 516; 137 A Crim R 326." 26 In Gorman Sperling J said at [57]: "Relevantly the offences in the present case were committed in the course of the same episode. His Honour so found. However, each offence contributed to the total criminality involved and care had to be taken to ensure that the overall effective sentence was appropriate having regard to the offences which were committed in the course of that episode."" 48As was properly conceded by counsel, the application of the above principles warranted a degree of accumulation to reflect the total criminality involved in the two offences. Once that is accepted, the extent of the accumulation was within the discretion of the sentencing judge. The fact that the applicant was the ringleader, was present when the second offence occurred and that the second offence contributed to the further degradation of the victim, adequately justified a level of accumulation of 2 years. This is so despite the fact that the two discrete criminal offences were committed against the same victim at about the same time and involved the same sexual act. 49It follows that no error on the part of the sentencing judge has been established and that this ground of appeal has not been made out. Conclusion 50To allow this application for leave to appeal against sentence to proceed would be futile in that it has no prospects of success. 51The order which I propose is that the application for extension of time be dismissed. 52JOHNSON J: I agree with Hoeben CJ at CL. 53BELLEW J: I agree with Hoeben CJ at CL.