R v Jones [2003] NSWCCA 54 (7 March 2003)

Last Updated: 13 May 2003

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Jones [2003] NSWCCA 54 revised - 12/05/2003

FILE NUMBER(S):

60476/02

HEARING DATE(S): 05/02/2003

JUDGMENT DATE: 07/03/2003

PARTIES:

Regina (Appellant)

Paul Thomas Leslie JONES (Respondent)

JUDGMENT OF: Santow JA Simpson J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0050

LOWER COURT JUDICIAL OFFICER: English DCJ

COUNSEL:

W G Dawe, QC (Crown)

R J Button (Respondent)

SOLICITORS:

S E O'Connor (Crown)

Many Rivers Aboriginal Legal Service (Respondent)

CATCHWORDS:

CRIMINAL LAW - sentence appeal - application of principle of double jeopardy to Crown appeal against sentence - whether sentence manifestly inadequate - whether failure to properly address objective seriousness of offences - whether accumulation or concurrence of sentences considered - whether principle of totality of criminal behaviour applied - whether adequate weight given to principles of deterrence and denunciation

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act NSW 1999 s33

DECISION:

Appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA 60476/02

DC 02/31/0050

SANTOW JA

SIMPSON J

SMART AJ

7 MARCH 2003

REGINA v Paul Thomas Leslie JONES

Judgment

1 SANTOW JA:

OVERVIEW

This is a Crown appeal against sentence. It requires the court to take into account in favour of the Accused the element of double jeopardy involved. That is, as an inhibition on increasing the sentence unless the discrepancy with a proper sentence is appreciable, not marginal and plainly apparent; R v Moffitt (1990) 20 NSWLR 114. Badgery-Parker J in that case was of the view that: "if the difference between the sentence which was the sentence which should have been imposed is not great, the element of double jeopardy may indeed justify dismissal of the appeal ..." at 129-130 [emphasis added]. That said, there is no specific discount for the double jeopardy involved. The extent of the discount must vary according to the individual circumstances of the particular case. In most cases the relevant circumstances are those subjective to the Respondent; Bang (Seung) Ho (NSWCCA, 1 September 1992, unreported) per Hunt CJ at CL. In Regina v AEM Snr; KEM; MM [2002] NSWCCA 58 at [145] the Court of Criminal appeal held that the principle of double jeopardy, insofar as it applies to a Crown appeal against sentence "... requires that the appellate court imposed the least sentence that could properly have been applied by the sentencing judge."

2 The sentence, aggregating 11 years, was imposed on 23 September 2002 by English DCJ of the District Court at Gosford. The Crown contends that the effective sentence was manifestly inadequate having regard to the gravity of the offences and that the sentencing judge failed to apply the Pearce principles of totality. The offences were, in summary, detaining for advantage and sexual intercourse without consent in circumstances of aggravation, involving threat of bodily harm and inflicting actual bodily harm. There were associated Form 1 offences also.

3 The Respondent contends that the sentence stood comparison to comparable cases of gravity. That it was a severe sentence, commensurate with that gravity and not such as to be manifestly inadequate or warrant appellate intervention, taking into account the principle of double jeopardy and the undisputed objective and subjective features of the matter. While error in applying Pearce is denied, it is agued that if there were any error in applying the Pearce totality principle, it was not such as to warrant interference with the sentence.

ELABORATION

4 The counts on the indictment of the Respondent demonstrate the seriousness of the charges. They were as follows:

Count 1: On 25 April 1999 at Erina in the State of New South Wales did detain RMB with intent to hold her for advantage to himself. (Maximum penalty 20 years imprisonment)

Count 2: On 25 April 1999 at MacMasters Beach in the State of New South Wales did have sexual intercourse with RMB without her consent and knowing that she was not consenting thereto, in circumstances of aggravation namely that immediately before the commission of the offence Paul Thomas Jones threatened to inflict actual bodily harm on RMB by means of an offensive weapon. (Maximum penalty 20 years imprisonment)

Count 3: On 25 April 1999 at MacMasters Beach in the State of New South Wales did have sexual intercourse with RMB without her consent and knowing that she was not consenting thereto in circumstances of aggravation namely that at the time of the offence Paul Thomas Jones maliciously inflicted actual bodily harm upon RMB. (Maximum penalty 20 years imprisonment)

5 The Respondent asked her Honour to take into account, when sentencing on Count 2, three further offences contained in a list in a Form 1 pursuant to s33 of the Crimes (Sentencing Procedure) Act NSW 1999. Those further offences were distinct crimes, rather than simply the one criminal enterprise or episode. That said, they were committed consecutively at MacMasters Beach against RMB and on the same occasion. They constituted a series of connected episodes with common features of non-consensual sex and violence. These were:

(i) Aggravated Sexual Assault (s61J, Crimes Act). The Respondent forced RMB to perform fellatio upon him after having threatened her with a broken bottle. (Maximum penalty 20 years imprisonment)

(ii) Aggravated Sexual Assault (s61J, Crimes Act). The Respondent inserted his fingers into the vagina of RMB after having threatened her with a broken bottle. (Maximum penalty 20 years imprisonment)

(iii) Assault occasioning actual bodily harm (s59, Crimes Act). The prisoner repeatedly punched RMB resulting in the following injuries, fracture of the nose, 2 centimetre cut across the nose and bruises and swelling to the face. (Maximum penalty 5 years imprisonment).

6 Her Honour imposed the following sentences on the Respondent:

Count 1: Imprisonment for four years to date from 29 November 2001.

Count 2: Imprisonment for ten years to date from 29 November 2002 with a non parole period of five years.

Count 3: Imprisonment for five years to date from 29 November 2002.

7 On 29 October 2002, Director of Public Prosecutions, Nicholas Cowdery, QC, directed that an appeal be lodged against the inadequacy of the sentences imposed upon the Respondent.

8 Neither side takes issue with the sentencing judge's statement of the relevant facts upon which she was sentencing the Respondent. It is convenient to take that statement of facts from page 2 of those remarks on sentence:

"The circumstances giving rise to the offences contained on the indictment, in the Form 1, were that at 3 pm on 25 April 1999 RMB who was then aged 19, was abducted by the offender from a shopping centre car park at Erina. The offender approached her as she returned to her car with some groceries. He asked her for directions to Terrigal. She drew him a map. He then asked her for a lift and she declined. She got into her vehicle to leave. The offender got into the back seat and said to her, "You're going to give me a lift. It'd hurt to get stabbed by this wouldn't it?", and RMB saw that the offender was holding the neck of a broken bottle in between the two front seats.

RMB then drove at the direction of the offender out of the car park and headed towards Terrigal. Once they arrived at Terrigal, she asked him where he wanted to be dropped off. He then directed her through Terrigal towards Avoca Beach and then onto Copacabana, and ultimately they arrived at MacMasters Beach. It had become apparent he was lost. He then looked at the street directory. By this stage, RMB was driving along a dirt track. The offender continued to direct her to drive up the track. The area was deserted and RMB could not see the main road. She had been driving for approximately one hour by this stage. He directed her to stop the car. He took the keys and put them under a rear seat. He asked the complainant to look at the street directory. She told him she did not know where they were, and she started to cry. The offender said to her, "I'll make a deal with you. You give me a head job and I'll let you drop me off at town". She replied, "You've got to be joking". The offender told her he had put the keys with the bottle where he could still reach them. She understood that he could get the bottle if she did not co-operate with him.

The offender wound the front seat back and climbed over into the front seat and straddled RMB. He forced her to perform fellatio. She had trouble breathing and felt like she was choking. This is the matter which forms the first count on the Form 1. He then ripped her singlet top off with her bra. He directed her to hold her breasts together and he forced his penis between her breasts from below and moved up and down. He then forced her again to perform fellatio and he ejaculated into her mouth. She had semen in her mouth that she eventually swallowed. This is the matter which forms the second count on the indictment.

RMB then asked if she could go home, and the offender replied, "You're not going anywhere until I've come twice". The offender then undid RMB's pants and inserted a couple of fingers into her vagina, the matter which is count 2 on the Form 1.

The offender while still in the front seat turned RMB over and began to push his penis against her vaginal and anal region. No penetration occurred. RMB was crying throughout. He then pulled her from the car and pushed her against the back door. He forced his penis against her vagina, but no penetration occurred.

He then threw her onto the gravel and pushed her onto her back and had penile vaginal intercourse with her. She received cuts to her back from the gravel. This offence is count 3 on the indictment.

A car came along the track and the offender took RMB back to her vehicle. Doreen Greentree and Stanley Madden were returning to their home. Ms Greentree approached RMB and the offender and asked what they were doing. The offender said to her, "Fuck off, where having sex". RMB signalled with her hand for help.

At some stage RMB managed to get out of the vehicle. The offender caught her and repeatedly punched her with his fists in which he was holding the broken bottle. She received a fractured nose, a 2 centimetre cut across her nose, bruises and swelling to her face. And this is the third matter contained on the Form 1.

Ms Greentree tried to assist RMB but the offender said to her, "I've got a gun, I'll kill her, I'll cut her throat".

Eventually RMB was able to break free from the offender and went with Ms Greentree to her house. The offender drove away in RMB's vehicle which was later found abandoned near MacMasters Beach. A subsequent fingerprint examination located seven prints of the offender in the following positions, three prints on the vehicle, one print on the map drawn by RMB, and three prints on the street directory. A DNA comparison was undertaken using a semen sample from the vaginal swabbing of RMB and DNA profile of the offender. The offender had the same DNA profile as the DNA recovered from the vaginal swab."

9 In the last paragraph on page 7 through to page 8 of her remarks on sentence it is evident that Her Honour considered that the offences were at the upper end of the scale of gravity:

"The sentence to be imposed must reflect the objective gravity of the offences committed against this 19 year-old girl. She was kept for an extended period in an isolated location, the violence inflicted upon her was significant. Threats were made that the offender would kill her. She sustained the injuries I have already referred to, and the circumstances were no doubt degrading, humiliating and distressful for her.

This offender may only have been 17 years and seven months when he committed this offence, but it was not an opportunistic offence, nor a spur of the moment decision.

Nicola Andrian made a statement to police. In her statement, she was approached by someone closely fitting the description of the offender shortly before the abduction of RMB, and a very similar scenario was played out by that male who approached her.

Those are matters which I find place these offences at the upper end of the scale severity."

10 The Respondent does not dispute the objective and subjective features of the matter contained in the written submissions of Senior Counsel for the Crown which are, for convenience, quoted below in anonymised form:

"In evidence before her Honour were three statements by the victim RMB. It is clear from those statements, particularly that which was made on the 26 April 1999, that this young woman was extremely frightened from the time of the presentation of the broken bottle neck right through until she was in the home of Doreen Greentree and Stanley Madden. As the respondent directed RMB into an area with which she was unfamiliar she became really scared. When overlooking MacMaster's Beach she said to the respondent "You're not going to hurt me are you?" She said she was really scared. When she was directed to stop the car on the track where the offences occurred, RMB was really scared [paragraph 30]. In paragraph 32 she expresses once again that the respondent was really frightening her. A reading of her statement from paragraphs 34 onwards is illustrative of the state of fear in which RMB was during the course of these offences. She asked him several times during the course of events whether he was going to rape her. She thought that if she tried to fight him he would kill her [41]. It is clear from the actions of the respondent that his design was not only to sexually gratify himself but was also to hurt and degrade his victim, he ejaculated in her mouth. The respondent knew that his victim was a virgin[49].

SUBJECTIVE FEATURES OF THE RESPONDENT

6. The respondent was born on 27 September 1981. At the time of committing these offences was 17 years and 7 months of age, and was therefore a young person at the time. At the time of sentence the respondent was 19 and due to turn 20 in a few days. Her Honour recognised that he had a difficult and chaotic childhood. He grew up in the care of his maternal grandparents. He lived with various relatives during his troubled teenage years, and spent time in juvenile detention centres. The respondent had formed a relationship which had endured for 2 1/2 years at the time sentence was imposed. He had a two-month old child from that relationship. He left school in year 9 and informed the Probation Service that he was expelled from one school although he reported having average grades. He had worked in a number of manual capacities. He commenced smoking cannabis when he was 12. He continued to use cannabis on a regular basis. This was apparently a social activity in his family. He commenced the use of heroin when he was 15 and living on the streets. He states his usage was anywhere between $200 and $1000 per week. He told her Honour that he ceased using heroin 2 years ago when he moved back home. He had been a binge drinker, he claimed to have completed a drug and alcohol course during his last period of incarceration. The respondent advised the Probation Service that he could not remember being involved in the offences, and he could not see himself having committed them. When he read the facts, he says he is disgusted and feels that whatever punishment he receives is justified because it cannot take away the grief RMB must feel. He says he was unsure whether he was drug affected at the time, but reports using a lot of drugs around the time. (Remarks on sentence page 7) . Her Honour referred to the respondent's criminal history [P. 7 ROS]."

11 It is apparent from this uncontroversial recounting of the relevant features of the offences that these were offences of aggravated sexual intercourse without consent and in the category of "worst case". Stating the matter in this way should not however obscure the fact that a "worst case" category still involves gradations within it, of degrees of gravity. However, the features of repeated sexual intercourse without consent, in circumstances where fear was induced with threats of violence reinforced by the broken bottle, against a young girl, a virgin, are very serious indeed. The intent that emerges from the actions of the Respondent was not only sexual gratification for himself but also to hurt and degrade his victim, knowing that his victim was a virgin.

12 The circumstances which told, to a limited extent in favour of the Respondent, were these. First, his relative youth; 17 years 7 months when he committed the offences and had a very difficult childhood, in the way described by Smart AJ. Second, he pleaded guilty to three counts though in circumstances where the DNA match would have made defending the proceedings very difficult. The victim was spared cross-examination. Third, he showed genuine remorse and contrition.

13 In the sentencing judgment the sentencing judge pointed out that though there was no victim impact statement, she had no doubt that RMB would carry emotional scars from the vicious abduction and attack. She pointed out that the victim and community were entitled to expect that significant periods of full-time custody would be imposed. The judgment properly makes clear the sentencing judge's consciousness that elements of retribution, general deterrence and specific deterrence must not be overlooked.

14 The aggregate sentence imposed on the Respondent was 11 years. The sentences for the various counts were to be served concurrently save in relation to the sentences for the first count and second; their cumulation applies to aggregate the first year of the sentence for Count 1 to the 10 years for Count 2. Thus the term of the Respondent's imprisonment commenced on 29 November 2001 (when the Respondent was first taken into custody after bail was refused). It is to end on 28 November 2012, being the expiration of the fixed term of imprisonment imposed for Count 2. The sentence for Count 1 was for a fixed term of four years, commencing on 29 November 2001 and ending on 28 November 2005. For Count 2, a 10 year term with a non-parole period of 5 years was imposed that commenced on 29 November 2002 (not 2001) and is to expire on 28 November 2012. The sentence imposed for Count 3, is wholly incorporated with the sentence for Count 2 and is for 5 years commencing on 29 November 2002 and expiring 28 November 2007. It follows that the sentence for Count 1 is cumulative in respect of its first year with the sentences for Counts 2 and 3. That produces an aggregate sentence of 11 years. No express reference is made in the sentencing remarks to any explicit choice between cumulative as against concurrent sentence. Nonetheless the actual sentences do reflect that such a choice was made.

15 The sentencing judge also noted that though the Respondent had a prior criminal record he had committed no similar offence. She considered the Respondent was entitled to the benefit of his plea of guilty as indicating remorse and contrition and as having public utility, though noting that the case against the offender was strong. In sentencing she stated that she had "taken into account the objective seriousness of the offences and subjective matters to which I have referred and I have had regard to the principle of totality." I will return to that principle later when I consider whether or not what the sentencing judge actually did and said showed that she had acted according to that principle of totality in the sentences imposed.

16 An affidavit was filed by the solicitor for the Respondent attaching a psychological appraisal from a Mr Smith. That appraisal deals in more detail with his having had a difficult background. It concludes with these paragraphs:

"Mr Jones would benefit from remedial reading and writing courses. It is also recommended that he become involved, if possible, with vocational training in the trades such as plumbing and in which he has expressed an interest.

If the recommended treatment is available and Mr Jones engages in it, he has a good chance of returning to the community and following a pro-social lifestyle. The sentence is already a long one and it is a long time to be separated from his daughter who is not yet one year old. It is vital that this issue receive attention in therapy."

17 The Appellant submits that the sentencing judge erred in the following respects in applying the principles of sentencing in this "worst case" matter, leading to the result that the overall sentence imposed is manifestly inadequate:

(i) Her Honour failed properly to address the objective seriousness of the offences when considering the principle of totality;

(ii) Her Honour inadequately applied the principles of Pearce v The Queen (1994) 194 CLR 610 in that she failed at the first stage to fix an appropriate sentence for each offence and then at the second to consider appropriate accumulation or concurrence taking into account the principle of totality;

(iii) Her Honour failed to give appropriate weight to the offences which were included on the Form 1 when sentencing in respect of Count 2 so as to reflect the overall criminality involved;

(iv) Her Honour failed to give adequate weight to the principles of deterrence and denunciation.

18 The Appellant's contention in relation to the sentence imposed in relation to the first count on the indictment, four years, being an offence carrying a maximum penalty of twenty year's imprisonment, was that it "absolutely failed to carry with it the required denunciation and general deterrent aspect which was necessary for the protection of members of the public carrying out the normal duties necessary to enable them to live in a community ..." This was the count detaining RMB with intent to hold her for advantage to himself.

19 The Appellant then submits that the sentence imposed in relation to Count 3, representing the culmination of this series of sexual assaults upon a now terrified young victim in fear of her life, failed to have regard to the escalation of violence on the part of the Respondent and had absolutely no regard for the dignity of the victim.

"Not only was she suffering the indignity of being subjected to penal/vaginal intercourse, without consent and after having informed the Respondent she was a virgin, she was subject to the not inconsiderable pain of having her back pushed into and cut by the gravel upon which she was being assaulted. She could feel the burning in her back."

It was then submitted that the five year sentence imposed for this offence was totally subsumed in the sentences imposed on Count 1 and Count 2 with no additional penalty imposed for this extremely serious offence.

20 Turning now to Count 2 in the indictment, this was the principal count in respect of the Form 1 charges pursuant to s33 of the Crimes (Sentencing Procedure) Act 1999. I have earlier referred to the two counts of aggravated sexual assault and the third count of assault occasioning actual bodily harm contained in the Form 1 list. The two counts of aggravated sexual assault have a maximum penalty of twenty years imprisonment each and the assault occasioning actual bodily harm attracts a maximum penalty of five year's imprisonment. The actual sentence imposed was imprisonment for ten years to date from 29 November 2002 (the Respondent having earlier entered his pleas of guilty on 2 May 2002) with a non-parole period of five years. Taking into account the cumulation of 1 year from Count 1, the aggregate sentence was 11 years.

21 The Appellant submits that though it is clear that Her Honour, in imposing that sentence on Count 2, did increase the sentence having regard to the matters on the Form 1, she did not have sufficient regard to the criminality involved in first the offence in Count 2 and second, the seriousness of the criminality involved in the offences contained on the Form 1. The Appellant submits that the offence in Count 2 should have had a penalty imposed around the figure actually imposed, without the consideration of the Form 1 matters. But the complaint is that insufficient regard was then had to Form 1 matters in the present instance, warranting further penalty.

22 I deal below with each of the specific matters relied upon by the Crown, in contending that the overall sentence imposed is manifestly inadequate. The first of these is that Her Honour failed properly to address the objective seriousness of the events and failed to consider and apply the principle of totality. As to the second, it is true that Her Honour when sentencing failed to make explicit a process of reasoning which spelled out with particularity how she was applying that principle in R v Pearce (1998) 194 CLR 610. While the sentencing judge made reference to Pearce, she did not explicitly indicate first that she had separately considered the questions of cumulation or concurrence, following the fixing of a sentence for each count. What she did in fact was to provide for cumulation of 1 year and concurrence for the rest. Nor did she elaborate how she had, in doing so, looked at the totality of criminal behaviour, asking what was the appropriate sentence for all the offences; R v Kalache [2000] NSWCCA 2; (2000) 111 ACrim R 152 per Sully J at 184, quoting from Thomas, "Principles of Sentencing", 2nd ed (1979) pp56-57. As was said in Pearce at [623-624] by McHugh, Hayne and Callinan JJ:

"To an offender, the only relevant question may be `how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality"

citing Mill v the Queen (1988) 166 CLR 59.

23 The Respondent puts in the alternative first that there was no error in the structure of the sentences and their aggregate. This is on the basis that when one looks at what the sentencing judge actually did, she did do what Pearce mandates, even if there were no explicit articulation of that beyond acknowledging that

"The offender is of course to be sentenced in accordance with the dictates of Pearce's case. I have taken into account the objective seriousness of the offences for which he is to be sentenced and I have considered the subjective matters to which I have referred. I have had regard to the principles of totality."

Essentially, the argument must be that this was a shorthand for what the principles in their application require.

24 Alternatively the Respondent put that if there were error in that structuring, the Court should not intervene. This is on the basis that the sentence of ten years for Count 2, commencing from 29 November 2002, to which the other sentences were concurrent (save for the first year from Count 1 which was cumulative) was not manifestly inadequate. This is when one took into account all the offences including the Form 1 offences, accepting that the offences were discrete but had common elements. Those were the sexual assault and the associated violence, against the same victim and upon the same occasion. As was stated in Dinsdale v the Queen [2000] HCA 54; (2000) 74 ALJR 1538, at [6] and [22] by Gleeson CJ and Hayne J (omitting footnotes):

"[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.

...

[22] In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been `upon the facts ... unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance'. Was the sentence `manifestly wrong'?"

25 The aggregate sentence of eleven years, taking into account the sentence already served at the time sentencing, was a very substantial one. The Appellant in arguing for its manifest inadequacy, relied heavily upon the recent judgment in AEM (supra). However, appalling as the circumstances were for the victim in the present case, AEM involved features which were even worse. The first is that there were two young victims in AEM, not one. Second, the offences were committed by a group of offenders on their victims, so adding to their humiliation. Third, their detention was for a longer period, overnight. While not irrelevant, not too much should be made of these differences, in offences as serious as these. More important is that the substituted sentence on appeal is comparable to the present one, as I explain, save for the significantly more lenient non-parole period in the present case.

26 In AEM the longest head sentence imposed by the trial judge was six years, whereas here the effective sentence is eleven years. Yet when the Court of Criminal Appeal in AEM re-sentenced, the sentences were of comparable severity to that imposed by the sentencing judge in the present case. Thus MM was sentenced to a term of imprisonment of ten years with a non-parole period of seven years, serving his sentence in the Juvenile Justice Centre until he turned 20 years of age. JH was sentenced to a term of imprisonment of eleven years with a non-parole period of eight years.

27 Thus it will be apparent that the principal difference in the sentences imposed in the present case is the shorter non-parole period of five years, compared to eight years, each being in relation to an aggregate sentence of eleven years.

28 The Respondent in his alternative argument accepts for that purpose that the sentencing judge in the present case did not expressly consider cumulation or concurrence, after having imposed the relevant sentences. In sentencing, she simply treated the ten year sentence as in effect the head sentence to which all other sentences were rendered concurrent, save for Count 1, where cumulation of 1 year applied. Taking into account this is a Crown appeal (see [1] above), the youth of the Accused and the plea of guilty, whilst also giving full weight to the gravity of the offences, the Respondent submits that the aggregate eleven year sentence, with its non-parole period of five still fairly reflected an appropriate sentence for the totality of that criminal behaviour. "In short, the conduct of the Respondent merited a very substantial sentence of imprisonment, and that is exactly what he received."

29 The Respondent also provides statistical material. While acknowledging that every case must turn on its own facts, so that other decisions of this Court and of sentencing judges are not determinative, the Respondent nonetheless points to these summaries of appeals concerning offences of aggravated sexual intercourse without consent, in which the circumstances of aggravation were not the age of the victim. The Respondent correctly contends that in those cases in which very lengthy sentences were imposed, there were almost always multiple victims or very bad criminal antecedents. Those cases are: R v Sing [2002] NSWCCA 20; (2002) 54 NSWLR 31; R v Button & Griffen [2002] NSWCCA 159; (2002) 54 NSWLR 455; R v Anderson [2002] NSWCCA 304; R v To [2002] NSWCCA 252; R v To [2002] NSWCCA 247; R v SMR [2002] NSWCCA 258; R v Kay [2002] NSWCCA 286; R v Fong [2002] NSWCCA 320; R v Baird [2002] NSWCCA 460.

30 If I am wrong in the view I have taken and it does fall to this Court to consider whether it will exercise its discretion to re-sentence I would then have regard to the report of Mr H J Smith. This report recounts the difficult childhood experiences of the Offender and that he had been a victim of domestic and other violence and had lived on the streets. Additionally, Mr Smith indicates that there are real prospects for the Offender's rehabilitation, although noting that such process may be long and difficult.

31 The judge at first instance did not have the report. But it leads to the conclusion that, in conjunction with all the other materials and giving full weight to the gravity of the offences, this Court should not intervene and re-sentence the offender who has already suffered a very substantial sentence of 11 years.

CONCLUSION

32 While I consider that the sentencing judge did not explicitly take the second step of the Pearce directive, wherein she should have expressly considered the question of cumulation or concurrence in looking at the totality of the criminal behaviour and its appropriate sentence in aggregate exposing her process of reasoning, nonetheless it may be inferred that that was in substance what she did. This was when she made the sentence for the first count cumulative (as to one year) with the sentence for the second count and, though again without express articulation, making the third sentence wholly concurrent. Moreover, if in error in failing to apply the totality principle explicitly, still there was an aggregate sentence ultimately imposed of 11 years for all the offences, including those in the list. That has not been shown to be manifestly inadequate, so as to warrant intervention by this Court, taking into account "the least sentence that could properly have been applied by the sentencing judge".

33 While the non-parole period might be said to be lenient, it does not when taken into account, render the sentence manifestly inadequate. I would in this context pay some regard to the psychological report to which I have earlier made reference, though not of primary significance. I consider that the aggregate sentence of imprisonment did indeed reflect the serious gravity of the offences and the totality of the criminal behaviour entailed close as it was to other cases of comparable gravity, in particular AEM. In so doing, I take into account that this is a Crown appeal against severity of sentence, that the Respondent was aged 17 years 7 months at the date of the offences, pleaded guilty on arraignment in the District Court, the victim was not cross-examined at any stage of the proceedings, the Respondent expressed contrition in his pre-sentence report and disgust with what he had done and, unusually, expressed his readiness to accept without complaint a severe punishment as a result. Finally, the Respondent had neither been convicted of sexual offences nor of any offence remotely approaching the seriousness of these in the past. There was only one offence against the person, common assault, for which he received a control order of one month. That the offences were part of the one, albeit extended, series of episodes against the one victim with their common elements supports concurrence as a proper application of the totality principle, even if not expressly articulated by the sentencing judge.

CONCLUSION

34 I would order that the Crown's application be dismissed.

35 SIMPSON J: I agree with Santow JA.

36 SMART AJ: The charges, the offences taken into account, the facts and circumstances, the background materials and the contentions of the parties are set out in the judgment of Santow JA.

37 To warrant this Court intervening on a Crown appeal against sentence the discrepancy between the sentence imposed and a sentence falling within the permissible range has to be appreciable, not marginal, and plainly apparent. That is how I propose to approach consideration of the sentences imposed.

38 The offences committed were very bad instances of these offences and the objective criminality which they evinced was high. I doubt if I would class them as being in the category of the "worst case", although they do come close. Nothing turns on this point.

39 The judge was confronted with a difficult sentencing exercise. The grave criminality and objective seriousness of the offences must be given dominant weight. However, the offender was 17½ years at the time of the offences and had had a childhood which could fairly be described as approaching horrific. Stability and parental guidance and support were missing as he was shunted or transferred around. He had shown genuine remorse and contrition. Since the commission of the offences he had settled down considerably and had started to turn a wasted and criminal life around. There were also pleas of guilty.

40 I do not accept the Crown submission that the judge failed to properly address the objective seriousness of the offences when considering the principle of totality. She narrated the facts of the offences in some detail along with the injuries inflicted. She held that the victim would "carry the emotional scars of this vicious attack upon her for the rest of her life" and described the offences as being "at the upper end of the scale of severity." The judge stated that she took into account the dictates of Pearce (1998) 194 CLR 610, the objective seriousness of the offences, the subjective matters and the principle of totality.

41 It cannot fairly be said that the judge failed to fix an appropriate sentence for each offence. She considered the issue of accumulation or concurrence including the question of totality. Other judges may have accumulated the sentences to a greater extent than the judge did. Indeed, that should have occurred. However, the accumulation is not so lenient as to attract the appellate intervention of this Court. The aggregate of the sentences imposed was substantial, that is 11 years with a non-parole period of 6 years. That involved a heavy period of imprisonment for a 17½ year old lad with his background. Nevertheless, having regard to the objective criminality of the offences the accumulation and the consequent aggregate of the sentences are lenient, but not so lenient as to attract the appellate intervention of this Court.

42 I reject the Crown submission that the judge failed to give appropriate weight to the offences which were included on the Form 1 when sentencing on count 2. She expressly took those offences into account and the sentence imposed on count 2 reflects that.

43 I do not accept that the judge failed to give adequate weight to the principles of deterrence and denunciation. Her remarks reveal that such considerations were in the forefront of her mind. Nor do the sentences imposed reflect such an alleged failure.

44 The Crown has failed to make good its contention that the sentences imposed and the accumulation and concurrency determined by the judge warrant appellate intervention. It follows that I would dismiss the Crown appeal against the sentences imposed by the judge.

45 If I am wrong in the view I have taken and it falls to this Court to consider whether it will exercise its power to re-sentence I would then have regard to the report of Mr H J Smith. That recounts in detail the distressing childhood experienced by the offender, being, amongst other things, the victim of domestic and other violence and living on the streets.

46 Mr Smith wrote:

"As Mr Jones has been convicted of Sexual Assault he needs to be assessed by, and become involved in a Sex Offender Program within Corrective Services. His current risk for drug abuse should be undertaken and addressed if needed.

It is recommended that he obtain psychological treatment for his intense feelings regarding his daughter and her possible and probable attachment to a father figure other than himself. This is related to his feelings around his own fathering. This is a crucial issue that needs to be addressed.

Mr Jones is a talented artist and if this is encouraged it will provide him with the possibility of a small income and also allow him a relaxing activity that has the potential to be therapeutic. Involvement in art classes and having access to any older Aboriginal artist would be advantageous to his rehabilitation.

and

"Mr Jones would benefit from remedial reading and writing courses. It is also recommended that he become involved, if possible, with vocational training in a trade such a plumbing, in which he has expressed an interest.

If the recommended treatment is available and Mr Jones engages in it, he has a good chance of returning to the community and following a pro-social lifestyle. The sentence is already a long one and it is a long time to be separated from his daughter who is not yet 1 year old. It is vital that this issue receive attention in therapy."

47 The sentences are, in total, lengthy. The report of Mr Smith paints a sorry picture of past deprivation but real prospects of rehabilitation, although that will be long and difficult. He will need much support and assistance on his release from custody. The fuller information which is available to this Court, but was not before the judge leads me to the conclusion that in conjunction with all the other materials and giving full weight to the gravity of the offences this Court should not intervene.

48 The Crown appeal against the sentences imposed should be dismissed.

ORDERS

49 Appeal dismissed.

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LAST UPDATED: 12/05/2003