Pritchard v R

1. [1]

   BEECH-JONES CL at CL: I agree with N Adams J.

2. [2]

   PRICE J: I agree with N Adams J.

3. [3]

   N ADAMS J: On 12 November 2020, the applicant, Damien Pritchard, was sentenced in the District Court at Lismore by Judge McLennan SC to an aggregate sentence of 9 years and 8 months’ imprisonment with a non-parole period of 7 years in respect of the following three serious offences:

   1. (1)

      Aggravated enter dwelling with intent to commit a serious indictable offence and break out contrary to s 109(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years’ imprisonment;

   2. (2)

      Inflict actual bodily harm with intent to have sexual intercourse contrary to s 61K(a) of the Crimes Act, which carries a maximum penalty of 20 years’ imprisonment; and

   3. (3)

      Carry out a sexual act with another person without consent contrary to s 61KE(a) of the Crimes Act, which carries a maximum penalty of 18 months’ imprisonment.

4. [4]

   The aggregate sentence was imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”). It commenced on 23 December 2019. The non-parole period will expire on 22 December 2026 and the head sentence will expire on 22 August 2029. The indicative sentences on both counts 1 and 2 was 6 years’ imprisonment. The indicative sentence on count 3 was 10 months’ imprisonment. The applicant pleaded guilty to these offences and a 25% discount was applied to the indicative sentences.

5. [5]

   The applicant now seeks leave to appeal against the aggregate sentence imposed on him by Judge McLennan SC under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on the following three grounds:

   1. (1)

      The sentencing judge erred in assessing the objective seriousness of count 1 by taking into account:

   2. (2)

      The sentencing judge failed to properly take into account the applicant’s remorse as a mitigating factor.

   3. (3)

      The sentence imposed was manifestly excessive.

Factual background

1. [6]

   The Crown tendered an agreed statement of facts. Judge McLennan SC set out these facts in his sentencing reasons and I have taken the following summary from his Honour’s reasons.

2. [7]

   The offences occurred during the early hours of the morning on 22 December 2019. The applicant was then aged 20 years and his female victim (“CV”) was aged 54 years. She resided alone in Lismore in a Queenslander-style house with stairs leading up to a front verandah.

3. [8]

   On the evening of 21 December 2019, the victim had been socialising with friends having been to an event at a local Art Gallery. Her friends left her house in a taxi at around 12.30am on 22 December 2019. The victim remained on her front verandah to finish her glass of wine. Whilst sitting there, she saw the applicant walk up her front stairs, stop halfway, look her in the eye and then turn and walk back down the stairs. At that time, she thought that the applicant was lost.

4. [9]

   About 10-15 minutes later, the applicant returned to the victim’s house and walked up the front stairs again. The victim was still sitting on her verandah and her front door was open. She asked the applicant what he was doing. He responded by asking for some wine. She asked the applicant to leave and started walking toward her front door.

5. [10]

   As she went to enter her house, the applicant grabbed her by the hair and pulled her around. As she struggled against him, he pushed her to the ground. He took her phone after she threatened to call police. She partially freed herself and attempted to shut her front door and escape, but the applicant blocked the door from being shut and yelled words to the effect of, “[r]ight bitch” in an aggressive manner. He then grabbed her by her hair and her clothes and dragged her into the hallway, shutting the door on his way through.

6. [11]

   The applicant then sat on top of the victim and ripped off her underwear. She struggled continuously against him. He tried to insert his penis into her vagina and then her anus but was not able to do so due to her resistance. During this struggle, the applicant slapped the victim on her buttocks, bit her left breast, bit her right index finger, grabbed her hair and forcefully banged her head into the ground multiple times.

7. [12]

   The discrete act that constituted count 3 was committed during the violent struggle. Whilst the applicant held the victim’s head to the ground, he masturbated himself with his other hand (and bit her on the back). This occurred whilst the victim was laying on the ground hoping the ordeal would stop. It did not. The violence continued.

8. [13]

   The applicant placed his hands around CV’s throat and jaw causing bruising, swelling and a small laceration. He sat astride her whilst he pushed her head down. She pleaded with him to stop but he screamed words to the effect of, “[s]hut up bitch” before punching her in the head with both clenched fists. The applicant then put his foot on the victim’s head and yelled words to the effect of, “I’ve got my foot on your head. I’m going to stomp on your head. I’m going to fucking kill you. Do you want that?”. The victim went limp and stopped moving. The applicant was quiet for a few minutes and then left the house.

9. [14]

   The victim ran to her son’s house nearby and described what had happened. Police and paramedics attended, and she was taken to Lismore Base Hospital where she underwent an examination. She received the following 21 separate injuries:

   1. (1)

      An abrasion to posterior fourchette (the fold of skin at the bottom of the entrance to the vagina).

   2. (2)

      Abrasions and bruising on the inner aspect of her left labia minora.

   3. (3)

      Linear abrasion in the area immediately below her clitoris.

   4. (4)

      Several fissures which are splits in the skin in the perianal skin.

   5. (5)

      Dark bruising to her right breast that was approximately six centimetres by eight centimetres.

   6. (6)

      Bruising to her left breast that was approximately two centimetres by three centimetres.

   7. (7)

      A bite imprint to her left scapula region with bruising.

   8. (8)

      A dark purple bruise to her left buttock approximately two centimetres in diameter.

   9. (9)

      A bruise to her forehead.

   10. (10)

       Bruising around her eyes.

   11. (11)

       Swelling of the left eyebrow.

   12. (12)

       A scratch on her upper lip.

   13. (13)

       A bruise two centimetres in width and approximately eight centimetres in length extending from her left jaw towards her left shoulder.

   14. (14)

       Bruising on either side of her neck. On the right side the bruising was approximately three centimetres by four centimetres and on the left side the bruising was approximately five centimetres by eight centimetres.

   15. (15)

       Further bruising to her neck extending from the right side to her sternal region.

   16. (16)

       A bruised right index finger with five puncture marks.

   17. (17)

       Bruising to her right wrist.

   18. (18)

       Bruising and a scratch to her left wrist.

   19. (19)

       Deep purple bruising to both elbows.

   20. (20)

       Bruising to her left upper arm.

   21. (21)

       A five centimetre scratch to her right upper arm.

10. [15]

    On 23 December 2019, police arrested the applicant, and he was conveyed to Lismore Police Station. He was then charged.

Proceedings on sentence

1. [16]

   The proceedings on sentence occurred before Judge McLennan SC on 17 August and 2 and 12 November 2020. The Crown tendered the indictment, agreed facts, the applicant’s NSW criminal history, the applicant’s custodial history, a victim impact statement (“VIS”) of CV dated 14 October 2020 (with an audio recording of CV reading her VIS), and separate fact sheets pertaining to prior charges against the applicant (generally arising from physical fights with others, including police).

2. [17]

   The applicant tendered a report of Patrick Sheehan, forensic psychologist, dated 10 August 2020, his undated letter of apology (received by Lismore Legal Aid on 14 October 2020), and a letter from Lismore Community Corrections, dated 16 September 2020.

3. [18]

   In her VIS, CV described how the offending “has had an enormous impact on [her] mental, physical and emotional health”. She described disrupted sleep, diminished productivity and a loss of happiness and safety as well as social isolation. She also described ongoing injuries affecting her neck, teeth and hands which rendered her work as an artist and art teacher “near impossible”.

4. [19]

   The applicant’s criminal history disclosed that at the time of the commission of these offences he was on four community corrections orders (“CCOs”) for offences involving violence. The first two CCOs were imposed in the Macksville Local Court for a period of 15 months in relation to an assault occasioning actual bodily harm on 23 September 2018 and a common assault on 13 April 2019 both committed whilst intoxicated. In relation to the first assault, the victim sustained a fractured jaw after being punched in the face a number of times. The second victim was a stranger walking his dog who the applicant punched because he was, “in a shit mood”.

5. [20]

   On 30 October 2019, the applicant was placed on two more CCOs, both for a period of 12 months following call-ups for earlier assaults on two police officers on 14 October 2018. The applicant was intoxicated on that occasion as well. When arrested for the breaches he was intoxicated, in breach of his bail conditions. A violent altercation followed when police tried to arrest him. Capsicum spray had to be used. At the police station, he continued to be aggressive, spat at police and said, “I don’t give a fuck about my bail conditions. I am eighteen and can drink when I want.”

6. [21]

   The report of Mr Sheehan, tendered by the applicant, was for the purpose of assessing psychiatric or psychological mitigating circumstances. Mr Sheehan interviewed the applicant for approximately two hours via audio-visual link. In his report, he noted that the applicant reported a “familial background of significant social disadvantage, following a familiar trajectory into substance abuse and acts of aggression disinhibited by intoxication”.

7. [22]

   The applicant’s family history, as provided to Mr Sheehan by the applicant, was that he was born and raised in the mid-north coast of NSW (mostly Macksville) to an Aboriginal father and Anglo-Australian mother. He is the second of six children. Both parents had chronic substance abuse disorders, and the applicant described a home environment of inadequate supervision, frequent violence, and intermittent neglect. His parents would often fight, and police were routinely called to attend the home. His father served a term of imprisonment after breaking his mother’s arm during an episode of domestic violence. The applicant started living away from home for extended periods from the age of 15. Most of his siblings are relatively well adjusted, and his mother’s behaviour has now stabilised. The applicant finished his HSC and has always been employed

8. [23]

   The applicant commenced using alcohol at age of 13-14, increasing to almost daily use from the age 17. He reported frequent episodes of “alcohol blackout” and being prone to aggressive behaviour while intoxicated. The majority of his prior criminal behaviour was precipitated by the consumption of alcohol. Cannabis and, more recently, methamphetamine and buprenorphine have also been used by the applicant, albeit for intermittent or isolated periods of time. He started counselling sessions in 2019 to address his substance use disorder as required by the terms of his CCO. He described this intervention as helpful but insufficient.

9. [24]

   Mr Sheehan noted the applicant’s willingness to pursue programs in custody directed at reforming his sexual behaviours but opined that his “primary treatment need” was in relation to a polysubstance use disorder “which has been instrumental in his offences past and present”. Mr Sheehan’s report, as well as the letter written by the applicant addressed to the sentencing judge, are discussed in more detail in my consideration of ground 2 below.

10. [25]

    The applicant gave evidence that the information he had told Mr Sheehan about his “background” was truthful. He gave no other evidence-in-chief and there was no cross-examination or re-examination. Judge McLennan SC asked the applicant a series of questions directed at establishing why the applicant had continued a habit of drinking when he knew that this led him to violent behaviour. The applicant answered:

11. [26]

    His Honour asked the applicant about his recall of the offences and the following exchange was had:

12. [27]

    The balance of the submissions focussed on the applicant’s amnesia of the offences, whether the offending could be properly characterised as spontaneous or opportunistic, and whether the applicant’s background of “childhood deprivation” meant that his moral culpability should be seen as reduced.

Remarks on sentence

1. [28]

   Judge McLennan SC set out the three counts to which the applicant had pleaded guilty and noted that no standard non-parole periods applied. His Honour then said:

2. [29]

   His Honour set out the facts of the offences and the injuries sustained by the victim before turning to the assessment of objective seriousness. The applicant complains under ground 1 that his Honour fell into error in his assessment of the objective seriousness. I have extracted his Honour’s findings of objective seriousness in my consideration below at [40].

3. [30]

   As for the applicant’s criminal history, his Honour made the following findings concerning the subject matter of his questioning of the applicant (extracted above at [23]-[24]):

4. [31]

   In respect of the applicant’s subjective case, his Honour regarded his youth as the “fact that offers the most hope at this stage for his ultimate rehabilitation” and summarised the effect of Mr Sheehan’s report.

5. [32]

   In respect of the applicant’s moral culpability, his Honour found:

6. [33]

   His Honour considered the applicant’s prospects of rehabilitation and said, “I am not prepared to find on the balance of probabilities that they are good”. It was in the context of this finding that his Honour referred to the applicant’s expressions of remorse. Ground 2 alleges error in the way that his Honour treated the question of remorse. The relevant portion of the sentencing remarks are set out in consideration of that ground below.

7. [34]

   Finally, his Honour set out some comparable cases, made comments on sentencing patterns in respect of violence against women and noted that he found special circumstances by reason of the applicant’s prospects of rehabilitation (mainly due to his youth) and the fact that this is his first time in custody, leading to a “very modest alteration in the statutory ratio”.

Ground 1(a): Objective seriousness – incorrect “serious indictable offence”

1. [35]

   I note at the outset that the applicant’s general complaint under ground 1 (although split into two sub-grounds (a) and (b)) is that, in committing the errors set out below, the sentencing judge’s finding of objective seriousness was too high (“above the mid-range” for both counts 1 and 2).

2. [36]

   Count 1 on the indictment charged the applicant with an offence contrary to s 109(2) of the Crimes Act. Section 109 is relevantly in these terms:

3. [37]

   “Circumstances of aggravation” are defined in s 105A(1) as follows:

4. [38]

   The amended indictment charged the applicant for count 1 as follows:

5. [39]

   Count 2 of the amended indictment charged an offence under s 61K(a) of the Crimes Act in these terms:

6. [40]

   The error contended for by the applicant is said to appear in the following passage of his Honour’s reasons regarding the assessment of objective seriousness:

7. [41]

   The applicant submitted that the sentencing judge took into account the incorrect serious indictable offence when considering the relevant “element” of count 1. Specifically, it was submitted that in assessing the objective seriousness for count 1 the sentencing judge erroneously had regard to the offence charged in count 2 (intentionally inflicting actual bodily harm with intent to have sexual intercourse contrary to s 61K(a) of the Crimes Act) as the relevant “serious indictable offence”, rather than the offence of sexual assault (contrary to s 61I of the Crimes Act) as particularised on the amended indictment to which the applicant pleaded guilty.

8. [42]

   The applicant challenged his Honour’s approach. It was noted that the s 61K(a) offence carries a maximum penalty of 20 years’ imprisonment whereas the s 61I offence carries a maximum penalty of 14 years’ imprisonment. It was submitted that the sentencing judge had regard not only to the wrong serious indictable offence but also one which was more serious than that particularised on the indictment such that the sentencing judge’s assessment of objective seriousness was exaggerated as a result.

9. [43]

   It was noted that, other than in the amended indictment, the relevant “serious indictable offence” was not discussed in the proceedings below; the agreed facts simply referred to “a serious indictable offence”, as did the Crown sentence summary. In the remarks on sentence, his Honour identified count 1 as “the offence of aggravated entering a dwelling with intent to commit a serious indictable offence and breaking out.”

10. [44]

    The sentencing judge also found count 2 to be above the mid-range of objective seriousness “due to the extensive nature of the violence administered over repeated attempts to resist being sexually penetrated.”

11. [45]

    The applicant submitted that count 1 was an offence of entering the victim’s dwelling house with intent to commit a sexual assault, in circumstances of aggravation, and then breaking out. The effect of the sentencing judge’s findings was that the applicant was sentenced for an offence of entering the victim’s dwelling house with intent to commit an intentional infliction of actual bodily harm with intent to have sexual intercourse with the victim, in circumstances of aggravation, and the breaking out. It was submitted that such an approach was erroneous and not in accordance with the offence to which the applicant pleaded.

12. [46]

    It was submitted that the sentencing judge took the later intentional infliction of actual bodily harm with intent to have sexual intercourse into account as a factor relevant to the assessment of the objective seriousness of count 1. It was submitted that this can be seen from his Honour’s statement that the “intended crime of sexual violence” was a “very grave example of a serious indictable offence” and his subsequent assessment of objective seriousness having “regard to … the intent behind the offence”. As a result, the sentencing judge erred in increasing the seriousness of the offending by taking into account the incorrect serious indictable offence.”

13. [47]

    In response, the Crown submitted that the applicant’s submissions under this sub-ground reflected “a mistaken understanding of the nature of the element ‘serious indictable offence’ in the first count on the indictment and that there was no error in the sentencing judge’s approach or remarks.

14. [48]

    The Crown submitted that the offence charged in count 1 comprised four elements ((1)-(3) as elements of the basic offence under s 109(1) of the Crimes Act and (4) as the circumstance of aggravation under s 105A):

    1. (1)

       Enter the dwelling-house of another;

    2. (2)

       With intent to commit a “serious indictable offence” therein;

    3. (3)

       Break out of that dwelling-house;

    4. (4)

       Use of corporal violence on any person.

15. [49]

    It was noted that the term “serious indictable offence” is defined in s 4 of the Crimes Act to mean “an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.” The Crown agreed that the “nominated act constituting a serious indictable offence was pleaded as being sexual assault, an offence created by s 61I”, but specified that “the reference to ‘sexual assault’ in the first count, was the nominated particular of the element of ‘serious indictable offence’. It was not the element itself: R v O’Donoghue [2005] NSWCCA 62; 151 A Crim R 597 at [23]-[25]; and Firbank v R [2011] NSWCCA 171 at [51].

16. [50]

    Further, the Crown submitted that the principles in The Queen v De Simoni (1981) 174 CLR 383; [1981] HCA 31 (“De Simoni”) “are key to the resolution of this ground of appeal”.

17. [51]

    The Crown also put forward the propositions that in the assessment of objective seriousness of an offence, the nature of the offending is not “confined to the ingredients of the crime, but may be taken to mean the fundamental qualities of the offence” (Williams v R [2012] NSWCCA 172 at [42] per Price J) and that the intention of an offender has always been a significant factor going towards objective seriousness (Yun v R [2017] NSWCCA 317 at [38] per Latham and Bellew JJ (with whom Campbell J agreed)).

18. [52]

    The Crown submitted that, in light of these principles:

19. [53]

    The applicant stood for sentence on charges that he had broken into premises with intent to sexually assault the victim in circumstances of aggravation (the use of corporal violence) and then broke out (count 1), that he inflicted actual bodily harm on the victim with intent to have sexual intercourse with her (count 2), and that during the violent act of assaulting the victim (with the intention to sexually assault her) he masturbated over her (count 3).

20. [54]

    In the impugned passage extracted above at [40], his Honour rejected the applicant’s submission that the offending “appears to be completely spontaneous and opportunistic”. He was satisfied that count 1 was “opportunistic” but not that it was “completely spontaneous”. His Honour then observed that “[c]ount 2 of course is a manifestation of the intent that is expressed as being the element of the offence the subject of count 1”. That accurately reflects the charges. The relevant “intent” in count 1 was to commit a sexual assault and the violence inflicted in count 2 was done with “intent” to sexually assault. It was the same intent for both counts.

21. [55]

    His Honour went on to reject the applicant’s further submission that it is difficult to distinguish count 1 from count 2 on the basis that whereas count 1 involves “the serious violation of the victim’s sense of safety and security in her own home”, count 2 involved the serious violation of the victim’s sense of bodily integrity. Again, I see no error in the way his Honour distinguished count 1 from count 2.

22. [56]

    The applicant contends that his Honour assessed the objective seriousness of count 1 on the basis that the offender entered with the intent to inflict actual bodily harm with intent to have sexual intercourse and then break out. I am unable to accept that submission. Count 1 contemplates that an offender has entered the premises with the intent to commit a particular offence, whether to steal, intimidate, assault or sexually assault. The requisite intent for count 1 in this case can be inferred from the applicant’s subsequent attempt to sexually assault the victim.

23. [57]

    His Honour went on to observe that “[c]ount 1 involves the offender having formulated the intention to commit a shocking crime of sexual violence upon a lone woman at night”. It is uncontroversial that to sexually assault a woman, particularly in her own home, is a “shocking crime of sexual violence”. That was the relevant intention for count 1; the applicant stood for sentence on count 1 for breaking in with intent to sexually assault the victim.

24. [58]

    His Honour then stated that the “intended crime of sexual violence I regard as being a very grave example of a serious indictable offence that the section otherwise contemplates”. Contrary to the applicant’s submission, I do not take his Honour to be saying that the relevant intention for count 1 was the infliction of actual bodily harm with intent to have sexual intercourse; it was to sexually assault the victim. The applicant was not to know how strongly this victim would fight back. If she had not struggled, she may not have been subjected to the violence inflicted on her but that is a matter of speculation. The fact that he was prepared to inflict such violence on the victim when met with opposition in his efforts to sexually assault her is the gravamen of count 2. As his Honour went on to observe, “[t]he corporal violence administered to the complainant … is of a significant level”.

25. [59]

    The applicant contends for error when his Honour found that count 1 represented an offence above the mid-range of seriousness on the basis that he did so “having regard to the element of forethought involved, the intent behind the offence, the level of corporal violence involved and the violation of the victim’s sense of safety and security in her own home.” (emphasis added) I repeat my finding above, the intent behind the offence was to have sexual intercourse. No error is disclosed in having regard to that factor.

26. [60]

    I do not accept the Crown submission that this ground is to be resolved by consideration of the principle in De Simoni. The ground does not allege any error in the drafting of the indictment. If the applicant had been correct and he was sentenced on the basis that the relevant intention for count 1 was to commit an offence contrary to s 61K(A) rather than s 61I, then that fact would be relevant to the assessment of objective seriousness but would not disclose any more serious offence than s 109(2) of the Crimes Act.

27. [61]

    No error is established under ground 1(a).

Ground 1(b): Objective seriousness – “preformed intention”

1. [62]

   The applicant contended as a separate complaint regarding the finding of objective seriousness that there was insufficient evidence for the sentencing judge to be satisfied beyond reasonable doubt that the objective seriousness of count 1 was worsened by the “element of forethought involved” (see the remarks extracted above at [40]) or the applicant’s “performed intention” to commit the offences.

2. [63]

   Additionally, the impugned findings were made by the sentencing judge in response to the applicant’s submissions that the commission of count 1 was a “spontaneous reaction to being frustrated by CV’s apparent refusal to permit the offender to have some wine”. In that context his Honour stated:

3. [64]

   The applicant referred to Mr Sheehan’s report about his recall of the events in question; Mr Sheehan had written:

4. [65]

   Ultimately, the applicant submitted that there was no evidence as to what occurred in the 10 to 15 minute period prior to the offending, nor as to what the applicant’s intention was as he approached the victim (other than by asking for wine). It was submitted that it was not open to the sentencing judge to find beyond reasonable doubt that the applicant had a “preformed intention” to commit the offences in circumstances where there was evidence that the applicant consumed both drugs and alcohol prior to the offences, evidence of his polysubstance abuse disorder, and sworn evidence that he had no recollection of the offending. It was submitted that, as a consequence, the sentencing judge erred in increasing the seriousness of the offending as a result of the “element of forethought involved”.

5. [66]

   The Crown submitted that the applicant’s submission that “there was insufficient evidence to support the finding that the applicant had formed any such “preformed intention beyond a reasonable doubt” should be taken as a concession that there was some evidence upon which the sentencing judge could draw that conclusion, namely, “retrospectant circumstantial evidence” (citing R v Biber [2018] NSWCCA 271 at [27] per Meagher JA, Hoeben CJ at CL and Fagan J).

6. [67]

   Noting the heavy onus borne by the applicant to displace the sentencing judge’s findings in this respect, the Crown submitted that it was open for the sentencing judge to use what the applicant did when he returned after his 10-15 minute absence to conclude that the applicant formed the intention to assault the victim sexually and otherwise during that 10-15 minutes because there was no other reasonable countervailing inference.

7. [68]

   A sentencing court may not take facts into account in a way adverse to the interests of an offender unless they are established beyond reasonable doubt, whilst it is sufficient if facts that are favourable to him are established on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ). Sometimes the state of the evidence is such that a sentencing judge may be unable to find facts to either of those standards. In such instances they are not required to do so: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64] (per French CJ, Bell, Keane and Nettle JJ).

8. [69]

   The complaint under ground 1(b) is that when his Honour rejected the applicant’s submission that the decision to sexually assault the victim was a “spontaneous reaction to being frustrated by CV’s apparent refusal to permit the offender to have some wine” (on the basis that he could not be satisfied of that on the balance of probabilities), there was insufficient evidence for the sentencing judge to be satisfied beyond reasonable doubt that the applicant returned to the premises with the intent to sexually assault the victim.

9. [70]

   The evidence that the judge relied upon to make the impugned finding was as follows:

   1. (1)

      His Honour rejected the applicant’s argument that the attempted sexual assault was a spontaneous reaction to being frustrated by CV’s apparent refusal to permit the offender to have some wine on the basis that if he wanted wine, all he had to do was ask on the first occasion;

   2. (2)

      The applicant returned to the premises 10-15 minutes after first seeing her;

   3. (3)

      Upon his return there was an almost immediate assault of the victim;

   4. (4)

      The request for wine was merely a pretence or ruse; and

   5. (5)

      The applicant determined that a lone woman would be easy prey for sexual assault.

10. [71]

    His Honour rejected any planning beyond the “preformed” intention formed prior to walking up the front stairs a second time to sexually assault her.

11. [72]

    I would add to the factors enumerated by the sentencing judge the fact that when the applicant first walked up the front stairs he stopped halfway, looked the victim in the eye, then turned around and walked back down the stairs.

12. [73]

    A further relevant factor is that the applicant had no memory of the event so there is no direct evidence on the question of when he formed the requisite intent. His Honour was left to resolve the issue by drawing inferences from the accepted facts.

13. [74]

    When considering the alternative inferences to be drawn from the accepted facts, the only competing hypothesis advanced was that the applicant returned 15 minutes later because he wanted a glass of wine and when the victim did not give him any, he formed a spontaneous intention to sexually assault her. It was open to his Honour to reject that hypothesis.

14. [75]

    I am satisfied it was open to his Honour to make the finding he did beyond reasonable doubt.

15. [76]

    I would dismiss grounds 1(a) and (b).

Ground 2: Remorse

1. [77]

   The applicant submitted that the sentencing judge conflated the question of remorse with the applicant’s inability to explain why he committed the offences and whether or not the applicant had good prospects of rehabilitation. In doing so it was submitted that there was a failure to take the applicant’s remorse into account as a mitigating factor pursuant to s 21A(3)(i) of the Sentencing Act.

2. [78]

   The applicant relied on the fact that the Crown conceded that remorse was a mitigating factor in this case pursuant to s 21A(3)(i).

3. [79]

   There was a letter of remorse from the applicant tendered before the court (extracted below) and references to remorse in Mr Sheehan’s report (also extracted below). The applicant submitted that this evidence was not challenged by the Crown and established his remorse as a factor in mitigation. It was submitted that the sentencing judge conflated remorse with both his explanation for the offending and his prospects of rehabilitation.

4. [80]

   The applicant submitted that it was not clear how his remorse was accounted for in the sentence imposed.

5. [81]

   The applicant relied upon the observations of Hoeben CJ at CL (with whom Campbell and Button JJ agreed) in Medcalf v R [2016] NSWCCA 209 at [37]:

6. [82]

   The Crown submitted that there was no relevant “conflation”, noting that remorse is a “concomitant” of rehabilitation (Stojanovski v R [2013] NSWCCA 334 at [1] per Hoeben CJ at CL; at [41] per Simpson J (as her Honour then was); and at [47] per Johnson J). Consequently, there was “no relevant distinction” between remorse and rehabilitation such that the sentencing judge could use his conclusion on the former in consideration of the latter.

7. [83]

   The Crown submitted that the applicant’s submissions implicitly concede that remorse was, in some way, considered by the sentencing judge. On that basis, this ground complains of insufficient weight being given to that factor by the sentencing judge. An error of insufficient weight is not an error under House v The King (1936) 55 CLR 499; [19436] HCA 40 (also citing Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [22], [53]).

8. [84]

   Ultimately, the Crown submitted that the sentencing judge was entitled to give diminished weight to the applicant’s expressions of remorse, in respect of which the extent of mitigation afforded to an offender will vary: Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22] (per Gleeson CJ, Gummow, Hayne and Callinan JJ).

9. [85]

   This ground of appeal concerns whether the sentencing judge erred in failing to consider the mitigating factor of remorse separately from his consideration of rehabilitation and risk of re-offending.

10. [86]

    The concept of “remorse” was considered by Buddin J (with whom McClellan CJ at CL and Schmidt J agreed) in Alvares v R; Farache v R [2011] NSWCCA 33 at [44] in the context of an appeal in which the applicants sought to establish that they were genuinely remorseful “with a view to ameliorating the otherwise appropriate sentence”:

11. [87]

    The factor of remorse is listed as a mitigating factor in s 21A of the Sentencing Act, which was enacted on 15 April 2002. Section 21A was initially heading “General sentencing principles” and included sub-s (2)(e) which provided that the Court must take into account:

12. [88]

    Section 21A was significantly amended from 1 February 2003 to enumerate aggravating and mitigating factors (to coincide with the introduction of standard non parole periods). It was re-headed “Aggravating, mitigating and other factors in sentencing” at that time. The mitigating factor of “remorse” was from then included in sub-s(3)(i) and was in these terms:

13. [89]

    Section 21A(3)(i) was amended yet again from 1 January 2008 to its current form. In the second reading speech of the amending Act (Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)), the then Attorney General, the Hon. J Hatzistergos, observed the following on 17 October 2007:

14. [90]

    It is significant that s 21A(3)(i) was enacted in its current form to reflect concern that findings of remorse were being made on “empty” words told to a third party to obtain a lesser sentence. Following the amendment, it is incumbent on the sentencing judge to make a finding as to whether the expression of remorse is genuine before it can be relied upon as a mitigating factor. But that does not mean that an offender must give sworn evidence in order to establish remorse: Butters v R [2010] NSWCCA 1 at [16]-[18] per Fullerton J (with whom McClellan CJ at CL and McCallum J agreed), and more recently CR v R [2020] NSWCCA 289 at [75] per Bellew J (with whom Hoeben CJ at CL and Harrison J agreed).

15. [91]

    In the present case the offender sought to meet the evidentiary burden of establishing remorse in a number of ways. First, he provided a letter to the Court in the following terms:

16. [92]

    Secondly, the applicant expressed remorse to his psychologist, Mr Sheehan, who recounted it in these terms in his report:

17. [93]

    Thirdly, the applicant entered the witness box. In doing so, he exposed himself to challenge on issues such as his expression of remorse in his letter and to the psychologist. Those statements of remorse were not challenged by the Crown in cross-examination nor did any of the questions he was asked by the sentencing judge go to the question of remorse.

18. [94]

    Fourthly, and in light of the above, the Crown conceded before the sentencing judge that remorse was a mitigating factor in this case.

19. [95]

    Despite the above four factors, his Honour did not make a separate finding of remorse. Rather, he dealt with the issues of the applicant’s risk of re-offending, rehabilitation, and remorse compendiously in the following portion of his sentencing reasons:

20. [96]

    As this extract shows, his Honour was unable to make findings that the applicant had good prospects of rehabilitation or was unlikely to reoffend for the reasons set out in the above passage. Neither of those findings were challenged in this Court. They were clearly matters open for his Honour to find on the evidence. But one of the reasons that his Honour was unable to make positive findings on these two issues appears to have been misgivings his Honour had about the applicant’s remorse. Those misgivings in the above passage can be summarised as follows:

    1. (1)

       The expressions of remorse were complicated by his apparent inability to remember or explain his conduct.

    2. (2)

       It cannot be known whether his claims of total amnesia are genuine or are a defensive strategy to distance himself from ownership of the offending behaviour.

    3. (3)

       If the offender has not truly accepted responsibility for his conduct, then his expressions of remorse must carry less weight and cannot be viewed as an unqualified and unequivocal pointer to good prospects of rehabilitation.

21. [97]

    It was open to his Honour to have doubts as to whether the applicant was genuinely amnesic to the events or whether he chose not to think about as it is too shameful. The applicant’s psychologist had expressed the same doubt. But, as the passage in Medcalf v R at [37] extracted above suggests, the failure to remember or even explain one’s conduct is not mutually exclusive with a finding of genuine remorse. In addition, there are three further difficulties with his Honour’s treatment of this factor in the above passage.

22. [98]

    First, his Honour made no finding as to whether he was amnesic or not. In fact, he expressly stated that it could not be known.

23. [99]

    Secondly, his Honour noted that if the applicant’s stated amnesia was a defensive strategy, then that could be relevant to whether he accepted responsibility for his actions which means his expressions of remorse “must” carry less weight. Although that statement is to be accepted as a matter of general principle, it must be considered in the context that his Honour expressly stated that he was not in any position to make any finding as to whether his amnesia was a defensive strategy in the first place

24. [100]

    Thirdly, putting the question of the applicant’s amnesia to one side, his Honour made no express finding in relation to remorse at all. He made no finding as to whether he accepted the applicant’s letter of apology or the evidence of Mr Sheahan. Nor did he note that the applicant’s evidence of remorse was unchallenged in cross-examination or that the Crown had conceded that remorse was established in this matter. It is well settled that a finding of genuine remorse is a mitigating factor on sentence. The applicant is left not knowing whether his Honour found his remorse to be genuine or not.

25. [101]

    The fact that the applicant exposed himself to cross-examination and was not challenged on his claim to be remorseful is significant. Evidence of remorse is commonly adduced in the form of third-party reports or other untested evidence. Although genuine remorse can be established in such a basis, it is not inevitable that it will be for the reasons explained by Wilson J in Imbornone v R [2017] NSWCCA 144 at [57].

26. [102]

    It is to be accepted that the questions of remorse, rehabilitation, and the risk of re-offending are interconnected. But his Honour did not make a finding either way regarding genuine remorse. On that basis, I am satisfied that his Honour erred. I would uphold this ground.

Ground 3: Manifest excess

1. [103]

   Given that error under ground 2 has been established, it is not necessary to consider whether the aggregate sentence imposed was unreasonable. Error having been established in the sentencing process the Court is required to discharge the obligation imposed by s 6(3) of the Criminal Appeal Act by an independent exercise of the sentencing discretion: Kentwell v The Queen (2014) 252 CLR]; [2014] HCA 37 at [43]. The parties’ submissions on ground 3 are nonetheless relevant to the question of re-sentence.

Re-sentence

1. [104]

   The applicant did not rely upon any additional evidence in the event of re-sentence.

2. [105]

   The applicant noted that the starting point for each of counts 1 and 2, before the application of the 25% discount, was 8 years’ imprisonment. It was submitted that the aggregate sentence of 9 years and 8 months represented a significant degree of accumulation for the offences, in circumstances where the offences involved one victim and were committed in one continuous course of conduct.

3. [106]

   It was submitted that this Court would give greater effect to the principle of totality given the single victim and the commission of the offence in one course of conduct. It was also submitted that this Court would give greater effect to the applicant’s background of disadvantage in circumstances where he was raised in an environment where his parents had chronic substance abuse problems; his father struggled with methylamphetamine addiction; and he was exposed to family violence.

4. [107]

   It was submitted that this Court would find the applicant was remorseful and to take that into account in mitigation in the way that it was not taken into account with respect to ground 2.

5. [108]

   The Crown submitted that in the event that error was found this Court would find that no lesser sentence is warranted. It was noted that the sentencing judge had rejected the applicant’s submission below that there ought not be any accumulation at all and found to the contrary that each offence was a “separate act of criminality”. The sentencing judge had also distinguished between count 1 as being a “serious violation of the victim’s sense of safety and security in her own home” and count 2 as being a “serious violation of the victim’s sense of bodily integrity”.

6. [109]

   I have considered the competing submissions.

7. [110]

   I would re-sentence the applicant by adopting all of the findings of the sentencing judge with one exception. I would find that the applicant is genuinely remorseful. I cannot be satisfied either way as to whether the applicant’s amnesia is genuine and the evidence of remorse was unchallenged.

8. [111]

   I would make a finding of special circumstances within the meaning of s 44(2B) of the Sentencing Act. His Honour varied the statutory ratio to reduce it from 75% to about 72%. I would allow for about the same ratio. Given the length of the sentence, I am satisfied that the parole period will be sufficient for the purposes of rehabilitation.

9. [112]

   I have applied the 25% discount for the pleas of guilty to the indicative sentences. The indicative sentences for counts 1 and 2 is 5 years’ and 6 months’ imprisonment and the indicative sentence for count 3 is 8 months’ imprisonment.

10. [113]

    The applicant is to be re-sentenced on the basis that he committed very serious offences of sexual violence on a woman in her home whilst on four CCO’s for offences of violence committed whilst intoxicated. I have had regard to the purposes of sentencing in s 3A of the Sentencing Act. They are all relevant to varying degrees in this sentencing exercise, but I would adopt the approach by the sentencing judge who put it this way:

ORDERS

1. [114]

   I would propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal allowed.

   3. (3)

      The aggregate sentence imposed by McLennan SC DCJ on 12 November 2020 is quashed. In lieu thereof, I impose an aggregate sentence of 9 years’ imprisonment to commence on 23 December 2019 and expire on 22 December 2028. The non-parole period is 6 years and 6 months which will expire on 22 June 2026.