Doherty v R [2006] NSWCCA 133 (28 April 2006)

CITATION: Doherty v R [2006] NSWCCA 133

FILE NUMBER(S):

2006/53

HEARING DATE(S): 7 April 2006

DECISION DATE: 28/04/2006

PARTIES:

Stuart Charles Doherty - Applicant

Crown - Respondent

JUDGMENT OF: Grove J Simpson J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0032

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:

C Smith - Applicant

P Ingram - Respondent

SOLICITORS:

S O'Connor - Applicant

S Kavanagh - Respondent

CATCHWORDS:

application for leave to appeal against severity of sentences

pleas of guilty

aggravated break and enter and commit a serious indictable offence

two counts of indecent assault

three counts of aggravated sexual assault

supply prohibited drug

Form 1 offences

prior criminal record

principles of totality in sentencing

circumstances of aggravation

same aggravating factor in respect of four offences

need for caution to avoid duplication of punishment

accumulation of sentences discretionary

accumulation excessive

manifestly excessive effective head sentence and non-parole period

LEGISLATION CITED:

Crimes Act 1900, s61L, s61J(1), s112(2)

Crimes (Sentencing Procedure) Act 1999, Part 3 Division 3, Part 4 Division 1A

Drug Misue and Trafficking Act 1985, s25(1)

DECISION:

(i) leave to appeal against each sentence granted

(ii) appeals allowed; the applicant re-sentenced as follows: Second indictment (taking into account the additional offences) - Imprisonment for a fixed term of one year, to commence on 7 November 2003 and expire on 6 November 2004

First indictment - Count 1: (taking into account the offence of break, enter and steal) imprisonment with a non-parole period of three years, to commence on 7 November 2004 and expire on 6 November 2007, with a balance of term of four years, to expire on 6 November 2011; Counts 2 and 3: imprisonment for a fixed term of two years, to commence on 7 May 2006 and expire on 6 May 2008; Count 4: imprisonment with a non-parole period of five years, to commence on 7 May 2006, and expire on 6 May 2011, with a balance of term of four years, to expire on 6 May 2015; Counts 5 and 6: imprisonment with a non-parole period of six years, to commence on 7 November 2007, and expire on 6 November 2013, with a balance of term of five years to expire on 6 November 2018. The result is an overall head sentence of 15 years with an overall non-parole period of 10 years. The earliest date on which the applicant would be eligible for release on parole is 6 November 2013.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

2006/53

GROVE J

SIMPSON J

BELL J

Friday 28 April 2006

Stuart Charles DOHERTY v REGINA

Judgment

1 GROVE J: I agree with Simpson J.

2 SIMPSON J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court at Parramatta on 1 June 2005 by Delaney DCJ. The applicant entered pleas of guilty to all counts on two indictments. The first indictment contained a count of aggravated break and enter and commit a serious indictable offence (the serious indictable offence being aggravated sexual assault); two counts of indecent assault; and three counts of aggravated sexual assault. He asked, pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) that an offence of break, enter and steal be taken into account in relation to the first count on this indictment.

3 By s112(2) of the Crimes Act 1900, the first count carries a maximum penalty of imprisonment for 20 years. Pursuant to Part 4 Division 1A of the Sentencing Procedure Act a standard non-parole period of five years is prescribed for an offence falling within the middle of the range of objective seriousness (further provided that there are not reasons for not imposing such a sentence). By s61L of the Crimes Act each of the two counts of indecent assault carries a maximum penalty of imprisonment for five years. By s61J(1) of the Crimes Act each of the three offences of aggravated sexual assault carries a maximum penalty of imprisonment for 20 years. Each of these offences is subject to a standard non-parole period of imprisonment for 10 years.

4 The second indictment contained a single offence against s25(1) of the Drug Misuse and Trafficking Act 1985, of supplying a prohibited drug, being cannabis. The applicant asked that, in respect of this offence, two offences of goods in custody and one of possession of prohibited drugs be taken into account, pursuant to Part 3 Division 3 of the Sentencing Procedure Act. The offence on the indictment carries a maximum penalty of imprisonment for 10 years.

5 As to the offences on the first indictment the applicant was sentenced as follows:

Count 1 (aggravated break and enter and commit serious indictable offence, taking into account the Form 1 offence): imprisonment for seven years with a non-parole period of three years, commencing on 7 November 2003;

Counts 2 and 3 (indecent assault): imprisonment for a fixed term of two years, commencing 7 November 2005 (these sentences to be served concurrently with one another, partially accumulated upon the earlier imposed sentence);

Count 4 (aggravated sexual assault): imprisonment for nine years with a non-parole period of five years, commencing on 7 November 2008;

Counts 5 and 6 (aggravated sexual assault): imprisonment for 11 years with a non-parole period of six years, commencing 7 November 2009.

6 On the offence on the second indictment, and taking into account the Form 1 offences, the applicant was sentenced to imprisonment for a fixed term of 12 months commencing on 7 November 2007. All relevant sentencing information can conveniently be set out in tabular form:

Table – Relevant sentencing information

First indictment

A – Count

B – Statutory maximum

C – Standard non-parole period

D – Non-parole period imposed

E – Balance of term imposedF – Total term G – Commencement date

H – Expiry of non-parole period

J – Expiry of head sentence

A B C D E F G H J

1 20 yrs 5 yrs 3 yrs 4 yrs 7 yrs 7.11.03 6.11.06 6.11.10

2 & 3 5 yrs n/a (fixed term) 2 yrs 7.11.05 - 6.11.07

4 20 yrs 10 yrs 5 yrs 4 yrs 9 yrs 7.11.08 6.11.13 6.11.17

5 & 6 20 yrs 10 yrs 6 yrs 5 yrs 11 yrs 7.11.09 6.11.15 6.11.20

First indictment

A – Count

B – Statutory maximum

C – Standard non-parole period

D – Non-parole period imposed

E – Balance of term imposedF – Total term G – Commencement date

H – Expiry of non-parole period

J – Expiry of head sentence

A B C D E F G H J

1 10 yrs- (fixed term) 1 yr 7.11.07 - 6.11.08

7 The result was an effective overall sentence of imprisonment for 17 years with a non-parole period of 12 years. It is worth remarking that, while the sentences were generally partially accumulated, the sentence imposed in relation to the drug offence (the offence on the second indictment) was wholly accumulated upon the sentence imposed in respect of Counts 2 and 3 on the first indictment, and the sentence imposed in respect of Count 4 on the first indictment was wholly accumulated upon the sentence imposed in respect of the drug offence. Although all offences on the first indictment were committed as part of a single criminal enterprise, and the drug offence was entirely separate therefrom, and committed at a later time, the sentence for the drug offence, being specified to commence on 7 November 2007 and expire on 6 November 2008, sits in between the sentences for the first indictment offences. Why this was done is not apparent.

facts

8 The facts of the offences demonstrate beyond doubt that heavy sentences were called for.

9 All offences the subject of the first indictment were committed on 25 July 2003. On that date, at about 12.30 am, the applicant entered a private dwelling by removing a flyscreen from the bathroom window and entering through the window. The victim of the offences, a 55 year-old widow, was asleep in bed. She was alone in the premises, which were a home unit which she shared with her daughter. The victim was awakened by the movement or the noise and arose to investigate. She saw the applicant attempting to hide against a linen press. He rushed towards her and wrestled her to the floor. In doing so he caused her some injuries, including lacerations to her lower lip, inside her mouth, her nose and grazing to her face. The victim attempted to fight off the applicant but was unsuccessful. The applicant tied her hands behind her back with some elastic material. He forced her into her bedroom and placed her face down on the bed. He undressed and approached her. He pulled up her nightie and rolled her onto her back. He then spread her legs and rubbed his penis against the outside of her vagina and her anus. He began to kiss her while continuing to rub his penis around her vagina. He penetrated her vagina and had intercourse with her. He withdrew his penis from her vagina and positioned it against her mouth. He forced her to perform fellatio upon him. He then again had forced penile intercourse with her.

10 In all, the applicant was in the victim’s unit for approximately fifty minutes. On the agreed facts tendered to the sentencing judge, from time to time he left the bed and rummaged through her drawers and cupboards.

11 There were sounds of the victim’s daughter arriving home. The accused fled the premises. He took approximately $500 in cash and a key-card in the name of the victim.

12 These events gave rise to all of the charges on the first indictment.

13 During the afternoon of 7 August 2003 police learned that the applicant was in a room in a motel in Windsor. They attended, and gained entry. There they located the applicant in possession of more than 2.2 kilograms of cannabis, together with more than $5,000 in Australian currency. This gave rise to the charge on the second indictment, and constituted the offences taken into account.

14 The applicant was arrested and charged on 7 August 2003. He has remained in custody since that date. The matters on the first indictment were fixed for trial to commence on 9 August 2004. On that date the applicant entered pleas of guilty to all charges. It appears that the pleas of guilty were negotiated; the negotiations involved the withdrawal of one count that had originally been on the indictment. Accordingly, while it was not suggested that the pleas were entered at the earliest opportunity, they were not as belated as might otherwise appear.

subjective circumstances

15 The sentencing judge had available to him a pre-sentence report and a psychiatric report. These showed that the applicant was born on 6 July 1965 and was 38 years of age at the time of those offences. He had had something of a disturbed background, and, prior to his arrest, he appeared to have no fixed place of residence. He spent some time with his mother, who provided him with a supportive environment. His father deserted before his birth and he had virtually no contact with him. He was physically and sexually abused by a step-brother. From a young age he moved between the care of his mother and his grandmother. He left school at a very early age, but is not illiterate. He has had intermittent employment since the age of 14, but has not been employed since 2002. He has a significant addiction history, having started to use cannabis at the age of 14, developed an addiction to heroin by the age of 22, having abused benzodiazepines, and, in close proximity to the offences, having developed an amphetamine habit. He was said to have little insight into his offending conduct.

16 The applicant has a very extensive criminal record. He has many entries for offences of dishonesty, dating back to 1983. In 1990 he was convicted of manslaughter and robbery with striking. These were by far the most serious offences on his record.

17 The psychiatrist who examined the applicant found evidence of auditory hallucinations during the time of the amphetamine use, and of unusual persecutory beliefs. He had some paranoia. These symptoms were active in the time prior to and immediately after the offences. The psychiatrist did not, however, diagnose any current psychosis.

18 The applicant did not give evidence in the sentencing proceedings.

19 Also before his Honour was a victim impact statement. While this is a moving and telling document, it does not, in the light of the nature of the offences, cause any surprise. The victim said that during the course of her ordeal she felt helpless and useless and feared for her daughter if she arrived home while the applicant was still in the premises. She was filled with fear, could not breathe and thought she would die. Thereafter she suffered the further ordeal of being taken to hospital, and waiting for a long time to be examined before she could have a shower. She was examined for any diseases that the applicant might have carried. For some time afterwards she slept in the same bed as her younger daughter with a night light, as she developed a fear of the dark. She used sleeping tablets. She was forced to resign from her job as a nurse as she was incapable of performing her functions and her concentration was poor. The event put any thoughts of a future relationship out of her mind.

the remarks on sentence

20 Delaney DCJ dealt carefully with the objective facts and the subjective circumstances, which it is unnecessary to repeat.

the grounds of appeal

21 Two grounds of appeal were pleaded. They were:

“1. The sentencing judge erred in the application of the principle of totality.

2. The sentence is (sic) manifestly excessive.”

22 The argument that was put was, firstly, that the judge erred in the application of the principles stated in Pearce v The Queen [1998] HCA 57; 194 CLR 610; that the accumulation of the sentences resulted in a manifestly excessive overall sentence; and that insufficient weight was given to the subjective circumstances of the applicant. In this latter respect particular reference was made to the pleas of guilty, the applicant’s mental condition prior to and immediately after the offences, evidence that he had potential constructively to change his lifestyle, and the continued support of his mother. Counsel who appeared for the applicant presented a carefully prepared and concise argument in support, a principal focus of which lay in the circumstances surrounding the commission of the offences the subject of the first indictment. He made two principal points. The first was, as has already been mentioned, that all offences were committed as part of the same criminal enterprise. He took issue with the finding that the episode continued over 50 minutes, and that the sexual assaults were interspersed by the applicant’s “rummaging” through the complainant’s drawers. (Some difficulty was created for counsel in this submission, having regard to an explicit assertion to that effect contained in the agreed statement of facts. It was, however, difficult to find support for it in the primary materials.) A more telling point concerned the “circumstances of aggravation”, which were an element of four of the offences. Counsel directed attention to the particularised indictment, which clearly shows that, in respect of each count, the circumstance of aggravation upon which the Crown relied was injury to the complainant’s face, mouth and head. It is obvious that caution needed (and needs) to be exercised to avoid duplication (or multiplication) of punishment for what is, in truth the same aggravating factor.

23 In my opinion this point is well made. While it cannot be said that any individual sentence was excessive, the overall sentence is certainly very high.

24 It is to be noted that no challenge is made to any of the individual sentences; it is only the result of the accumulation that is the subject of complaint.

25 On behalf of the Crown it was acknowledged that the circumstances posed a risk of double counting, and that there was a need to guard against falling into that error; but that, having regard to the plainly very serious nature of the offences, no lesser sentence than the total sentence actually imposed was called for.

26 It is well established that questions of accumulation or concurrence are very much within the discretion of a sentencing judge: R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66. Nevertheless, in my opinion, it has been shown that the extent of the accumulation of the sentences was excessive, and resulted in a manifestly excessive effective head sentence and non-parole period. It is probable that this came about as a consequence of reliance upon the same injuries to the complainant as aggravating four of the offences, but that does not need to be finally decided.

27 In my opinion, the ground has been made good. The error can be corrected by adjusting the starting dates of certain of the sentences, increasing the degree of concurrency and reducing the effect of the accumulation in some cases.

28 I propose the following orders:

(i) leave to appeal against each sentence granted;

(ii) appeals allowed; the applicant be re-sentenced as follows:

Second indictment (taking into account the additional offences)

Imprisonment for a fixed term of one year, to commence on 7 November 2003 and expire on 6 November 2004.

First indictment

Count 1: (taking into account the offence of break, enter and steal) imprisonment with a non-parole period of three years, to commence on 7 November 2004 and expire on 6 November 2007, with a balance of term of four years, to expire on 6 November 2011;

Counts 2 and 3:

imprisonment for a fixed term of two years, to commence on 7 May 2006 and expire on 6 May 2008;

Count 4:

imprisonment with a non-parole period of five years, to commence on 7 May 2006, and expire on 6 May 2011, with a balance of term of four years, to expire on 6 May 2015;

Counts 5 and 6:

imprisonment with a non-parole period of six years, to commence on 7 November 2007, and expire on 6 November 2013, with a balance of term of five years to expire on 6 November 2018.

The result is an overall head sentence of 15 years with an overall non-parole period of 10 years. The earliest date on which the applicant would be eligible for release on parole is 6 November 2013.

29 BELL J: I agree with Simpson J.

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LAST UPDATED: 01/05/2006