BB v R

1. [1]

   BATHURST CJ: I have read the judgment of Bellew J in draft. I agree with the orders his Honour proposes and with his reasons.

2. [2]

   McCALLUM J: I agree with Bellew J.

3. [3]

   BELLEW J:

4. [4]

   Introduction

5. [5]

   BB (“the applicant”) pleaded guilty before the Local Court to an offence contrary to s. 112(2) of the Crimes Act 1900 (NSW) in the following terms:

6. [6]

   The applicant adhered to that plea of guilty when he appeared before the District Court for sentence. On 17 February 2016, his Honour Judge Toner SC sentenced the applicant to a non-parole period of 4 years imprisonment, with an additional term of 3 years.

7. [7]

   The applicant now seeks leave to appeal against that sentence on the grounds more fully set out below.

The facts of the offending

1. [8]

   Commencing at ROS 1, the sentencing judge found the facts of the offending to be as follows (noting that any reference which might identify the victim of the offending, who was only 15 years of age, has been redacted):

His Honour’s assessment of the objective seriousness of the offending

1. [9]

   Commencing at ROS 6 his Honour noted the standard non-parole period of five years imprisonment, before describing the offending as a “serious rendition of this crime”. He did not accept that the applicant was drug affected at the time. He specifically rejected the applicant’s explanation that he was at the premises by mistake, describing such the applicant’s assertion that he thought that he was at the premises of his former partner as “fanciful”. His Honour went on to conclude (at ROS 8):

Other sentences imposed by the applicant

1. [10]

   A short time after the commission of the offence on 17 June 2015 the applicant was taken into custody and was refused bail. He remained in custody at the date of his sentence. At the time of his arrest he was on conditional bail for a number of other offences (“the driving offences”) in respect of which he was sentenced as follows:

2. [11]

   Each of the sentences imposed for the driving offences was expressed to date from 1 October 2015 (i.e. the date on which he appeared before the Local Court). The period of custody served by the applicant between his arrest on 17 June 2015 and 1 October 2015 (approximately 3½ months) was solely referrable to the offence for which he was sentenced by Judge Toner. The period of custody served between 1 October 2015 and 31 May 2016 was solely referrable to the driving offences.

The reasons of the sentencing judge

1. [12]

   At ROS 10, having referred to the sentences imposed for the driving offences, his Honour said:

Submissions of the applicant

1. [13]

   Counsel for the applicant did not submit that the approach taken by the sentencing judge in imposing the sentence was contrary to principle. However he submitted that the degree of concurrency allowed was “erroneously inadequate” because his Honour:

Submissions of the Crown

1. [14]

   The Crown submitted that in circumstances where the driving offences were different in nature, and had been committed at an earlier time, it remained within the bounds of a proper exercise of discretion for the sentencing judge to structure the sentence as he did. It was submitted that had the sentence imposed been wholly concurrent with the sentences imposed for the driving offences, the applicant would have received no effective punishment for the latter.

2. [15]

   The Crown submitted that the driving offences were not part of the same course of criminal conduct as the subject offence. It was also pointed out that the subject offence was committed after the applicant had been charged with, and released on bail in respect of, the driving offences.

3. [16]

   The Crown further submitted that it was evident from the remarks of the sentencing judge that he had specifically turned his mind to the question of totality, and that no error was established.

Consideration

1. [17]

   The extent of accumulation and concurrency which might be ordered by a sentencing judge involves the exercise of judicial discretion in accordance with established principle: Pannowitz v R [2016] NSWCCA 13 at [40] per Davies J (Hoeben CJ at CL and Beech-Jones J agreeing). In that case, his Honour also observed (at [41]):

2. [18]

   Similarly, the gravamen of the applicant’s complaint in the present case was that the degree of concurrency allowed by his Honour was inadequate. No specific error of the kind discussed in House v The King (1936) 55 CLR 499; [1936] HCA 40 was identified. Rather, it was the applicant’s position that the degree of concurrency was so inadequate as to be reflective of error.

3. [19]

   I am unable to accept that submission. The driving offences were entirely unrelated to the subject offence and were different in both nature and time. Moreover, the sentencing judge was obviously mindful of considerations of totality, having made specific reference to it. In these circumstances, the sentence imposed was one which was within the bounds of a proper exercise of sentencing discretion.

4. [20]

   For these reasons, this ground is not made out.

The evidence before the sentencing judge

1. [21]

   In terms of the applicant’s subjective case, a pre-sentence report before the court noted that the applicant disclosed that he had been diagnosed with ADHD as a child, and was currently prescribed medication in custody “for mental health issues”.

2. [22]

   A report of Monica Schweickle, Clinical Psychologist, was also before the sentencing judge. Under the heading “Summary and Opinion” Ms Schweickle said (inter alia):

3. [23]

   In a handwritten letter to the sentencing judge, the applicant (inter alia) apologised for his actions, expressly acknowledging that the incident would have frightened the victim and her family.

The findings of the sentencing judge

1. [24]

   I have previously set out the findings of the sentencing judge in relation to the facts of the offending, and his Honour’s assessment of its objective seriousness. His Honour dealt with the applicant’s subjective case commencing at ROS 8. He noted that the applicant was then 31 years of age. He observed that until about the age of 13 the applicant’s life was “comfortable enough” but that this was interrupted when his father was badly injured in an industrial accident. His Honour found that from that time, the applicant’s life “largely collapsed around him”, leading to the eventual breakup of his family.

2. [25]

   The applicant became his father’s carer until his death in the applicant’s mid-20’s. As a consequence, the applicant had a somewhat sporadic employment history. His Honour also observed (at ROS 8) that the applicant had had a drug problem since the age of 16 and had used, in the intervening period, “a cocktail of drugs”, including ice and heroin.

3. [26]

   The applicant’s criminal history was before the sentencing judge. His first appearance before a Court as an adult was in 2006. His criminal history included offences of violence as well as driving offences. Significantly, in 2007 he was sentenced to a term of imprisonment for a charge of assault with an act of indecency. The facts in respect of that offending were before the sentencing judge. Broadly speaking, that offending was not dissimilar to that for which the applicant was sentenced by his Honour. The applicant was given the benefit of a suspended sentence on that occasion but was later sentenced to a term of imprisonment as a consequence of breaching his bond.

4. [27]

   His Honour was satisfied on the basis of the report of Ms Schweickle that the applicant was suffering from a “severe depression”, although he was not satisfied that there was any causal connection between that condition and the offending. He accepted the applicant’s assertion, contained in his letter to the Court, that he had been assaulted since being taken into custody and concluded (at ROS 12) that this was a matter which should be taken into account in mitigation.

5. [28]

   His Honour concluded that it was important to emphasise the need for both specific and general deterrence. He said that he had a “jaundiced view” about the applicant’s prospects for rehabilitation and was “cautious” about them. Notwithstanding those reservations, and on the basis of the applicant’s depressive condition and the need to address his drug addiction, his Honour found that there were special circumstances. Having said (at ROS 14) that those circumstances would be “tempered to some extent”, his Honour adjusted the ratio between the non-parole period and the head sentence to one of 57%.

Submissions of the applicant

1. [29]

   Counsel for the applicant submitted that a number of factors supported a conclusion that the sentence was manifestly excessive. Those factors included:

2. [30]

   By reference to sentencing statistics, counsel for the applicant pointed to the fact that the sentence imposed upon the applicant fell into the highest 5% of sentences imposed for offences contrary to s. 112(2). This, it was submitted, was indicative of the manifest excess of the sentence.

3. [31]

   Finally, counsel for the applicant relied on decisions of this Court in Andrews v R [2011] NSWCCA 24 and Smith v R [2013] NSWCCA 209 in support of the submission that the sentence was manifestly excessive.

Submissions of the Crown

1. [32]

   The Crown submitted that the finding of the sentencing judge that the offending fell in the mid-range of objective seriousness was, from the point of view of the applicant, a generous one. In this regard the Crown pointed, in particular, to the fact that the offending occurred in the home of the victim, in her bedroom, and in the middle of the night.

2. [33]

   In terms of the applicant’s reliance upon sentencing statistics, the Crown submitted that such material was of limited use. Similarly, the Crown submitted that the two authorities relied upon by counsel for the applicant for comparative purposes were readily distinguishable from the present case.

3. [34]

   In all of these circumstances, and bearing in mind the nature of the offending and the applicant’s criminal history, the Crown submitted that this ground was not made out.

Consideration

1. [35]

   In order to succeed on this ground the applicant must establish that the sentence imposed was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 35; [2005] HCA 25; at [25].

2. [36]

   Counsel for the applicant did not cavil with any of the factual conclusions reached by the sentencing judge. His Honour expressly rejected the applicant’s explanation for how he came to be in the victim’s premises. His Honour also found that:

3. [37]

   The applicant’s offending was obviously serious. Having gained entry to the victim’s premises and gone to her bedroom, the applicant (in the face of obvious resistance by the victim) persisted in his offending. As he did so, the force that he applied to the victim escalated. The increasingly louder screams of the victim were met by the applicant attempting to stifle them by putting his hand over her mouth, resulting in her struggling to breathe. It was only when the applicant was startled by being grabbed by the victim that she was able to escape from the physical hold that he had on her. Moreover, the applicant did not leave the premises when the victim’s mother intervened. She effectively had to force him to do so. On any view of it, this would have been a most frightening experience for the victim.

4. [38]

   It is not an element of an offence under s. 112(2) that the premises in which the offending occurs are those of the victim. Accordingly, contrary to his Honour’s observations during the sentence proceedings (at T28 L5 and following) it would not have amounted to impermissible double counting for his Honour to have taken into account the fact that the offending was committed in the victim’s premises: Chung v R [2017] NSWCCA 48 at [47] per the Court (Beazley P, R A Hulme and Bellew JJ). In this respect his Honour’s approach was one which incorrectly favoured the applicant.

5. [39]

   In light of all of these factors, his Honour’s ultimate finding that the offending fell at the mid-range of objective seriousness might be regarded as a generous one from the point of view of the applicant.

6. [40]

   The applicant’s criminal history included not dissimilar offending, albeit some years ago. That is obviously significant. Moreover, as previously noted, the sentencing judge found that there were special circumstances and substantially reduced the ratio between the non-parole period and head sentence. In doing so, his Honour expressed caution about the applicant’s prospects of rehabilitation, admitting that he had a “jaundiced view” about them. There was little evidence which pointed to a conclusion that a longer period on parole would assist the applicant’s rehabilitation. Further, having indicated that he would “temper” his finding of special circumstances, his Honour in fact reduced the statutory ratio between the non-parole period and the head sentence from 75% to 57%. In my view, his Honour’s finding that these were special circumstances, and his degree of adjustment of the statutory ratio, were also generous to the applicant.

7. [41]

   The fact that the statistical material in the present case may demonstrate that the sentence imposed upon the applicant is at the upper end of the range of sentences imposed for this kind of offending does not, of itself, support the proposition that the sentence is manifestly excessive: MLP v R [2014] NSWCCA 183 at [45]-[46] per Bellew J (Macfarlan JA and Adamson J agreeing). Any assistance provided by statistical material is also limited by the fact that s. 112(2) covers a particularly wide range of offending, along with the fact that the statistics say nothing about the circumstances of the individual offences: Smith v R [2013] NSWCCA 209 at [64]-[66] per R A Hulme J (Leeming JA and Button J agreeing).

8. [42]

   To the extent that the applicant sought to draw support from a comparison between the sentence imposed in the present case and those imposed in Smith and in Andrews v R [2011] NSWCCA 24, it has been observed on a number of occasions that consistency in sentencing is not demonstrated, and does not require, numerical equivalence, and that what is sought is consistency in the application of relevant legal principle: see for example MLP at [41]-[44] and the authorities cited therein. For all of these reasons, the necessity to take particular care when engaging in such comparative exercises, and the importance of considering the entirety of the circumstances which resulted in a particular sentence being imposed in a particular case, have been emphasised: see for example RLS v R [2012] NSWCCA 236 at [132] per Bellew J (McClellan CJ at CL and Johnson J agreeing).

9. [43]

   Reference to the two authorities to which the Court was taken demonstrates that, when compared to the present case, there are factors which distinguish the objective circumstances of the offending, and/or the subjective circumstances of the offender. In Andrews, although the offending was of a broadly similar nature, it was of less objective severity. There was no finding (as there was in the present case) that the offending was premeditated. Moreover, the offender in that case suffered from an intellectual impairment which was found to be causally related to the offending. Even allowing for those factors, Hall J (with whom Beazley JA (as her Honour then was) and James J agreed) described the sentence imposed at first instance (a non-parole period of 2 years and 6 months and an additional term of 2 years and 6 months) as “a very lenient one” (at [24]).

10. [44]

    The offending in Smith was of a different nature (in the sense that the serious indictable offence was that of intimidation). It took place in a context of previous domestic violence perpetrated by the offender on the victim, in breach of an apprehended violence order, and at a time when the offender was subject to good behaviour bonds. That said, there were aspects of that offender’s subjective case which did not form part of the subjective case of the applicant. They included a finding that there were good prospects of rehabilitation.

11. [45]

    Leaving aside such distinguishing factors, any assistance provided by a comparison of those cases with the present is further diminished by the fact that those cases obviously represent a small percentage of matters of this kind. In Smith, R A Hulme J relevantly observed (at [67]):

12. [46]

    For all of these reasons, I am not persuaded that the sentence is manifestly excessive.

13. [47]

    It follows that ground 2 is not made out.

ORDERS

1. [48]

   I propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is dismissed.