Harris v R

HOEBEN CJ at CL:

The sentence proceedings were heard by her Honour Judge English, sitting in the Wagga Wagga District on 17 June 2016. The applicant was sentenced by her Honour on 21 June 2016.

On Count 1 the applicant was sentenced to imprisonment with a non-parole period of 4 years and 6 months, to date from 14 May 2015 and to expire on 13 November 2019, with a head sentence of 6 years to expire on 13 May 2021.

On Count 2, taking into account the three matters on the Form 1, the applicant was sentenced to imprisonment with a non-parole period of 8 years, 5 months and 7 days commencing on 14 May 2015 and expiring on 20 October 2023, with a head sentence of 11 years and 3 months expiring on 13 August 2026. The sentence imposed for Count 1 was wholly concurrent with that imposed for Count 2.

The applicant seeks leave to appeal against that sentence on the following ground of appeal.

At about 8.45pm on 11 July 1999 the victim, BC, had retired to bed when she heard what she believed to be the sound of a key sliding into the door-lock of her apartment. She was aged 22 at the time. When she got out of bed, she saw a male figure in the doorway. This was the applicant, who was unknown to the victim, and was wearing a balaclava. He said “Don’t scream bitch or I’ll bash you”. The applicant then put his left palm over the victim’s face. The victim saw that he was wearing gloves. When the victim commenced to scream, he said “Don’t scream or I’ll hit you”.

The applicant grabbed the victim’s shirt and spun her around so that she was looking towards her bedroom and he was behind her. He pulled her downwards, causing her to fall to the floor. The right side of her cheek struck either the corner of the lounge or the heater. The applicant ordered her to “lie down”.

The applicant sat on the victim’s back and straddled her with a leg either side of her body. He said “Righto B, where’s your money?” She asked “Do you know me?” and he replied “Yes, I know you BC”. The applicant then forced the victim into the kitchen where she gave him $70 from her wallet saying “Just take it”.

The applicant forced the victim back into the bedroom and pushed her onto the floor so that she lay on her stomach. He said “Have you got any belts?” to which she replied that they were in a cupboard. The applicant said “Stay there. Aren’t you having any visitors tonight?” to which the victim replied “No”. The applicant then asked “Isn’t C coming?” (C was the victim’s boyfriend). The victim replied “No”.

The applicant ordered the victim to put her hands behind her back, after which he tied them together using the belts and an article of clothing. He pushed the back of the victim’s head causing her to fall forward and land face down on the bed. The applicant got into bed next to her and lay only centimetres away from her, facing her. The victim said “I don’t want you to hurt me” to which the applicant responded “I’m not going to hurt you”. The applicant started rubbing both his hands over the victim’s back and buttocks and over her clothing. While doing so he was saying “You’re beautiful. Close your eyes”.

The applicant turned the victim over so that she was lying on her back and continued to touch her, putting his hands under her singlet top and around her stomach area. He circled her breasts with his hand for about five minutes. The victim was terrified about what might happen next.

The applicant said: “If C doesn’t want you, I’ll have you. Don’t you remember a couple of weeks ago you knocked me back?” to which the victim replied “No”. The applicant said “Open your mouth”. The victim complied and the applicant placed his penis entirely inside her mouth. She could feel that his penis was fully erect. The applicant ordered her to suck it and she complied with that demand. The applicant kept pushing his penis into her mouth about five or six times, causing the victim to choke as he pushed his penis further and further into her mouth.

The applicant then grabbed the victim’s left arm and pulled her upwards. He sat her up and manoeuvred her so that her legs were dangling over the side of the bed. He ordered her to “keep your eyes shut”. The victim complied. The applicant put his right hand on the back of her head and pulled her head towards his penis and pushed his penis into her mouth again. He forced her to perform fellatio on him for two or three minutes.

The applicant suddenly took his penis out of her mouth and ordered the victim to “stand up”. He forced her to kneel on the floor and lie with her chest on the bed. The applicant put both of his hands on either side of the victim’s underpants and pulled them down and ordered her to “lift your knees”. He rubbed his erect penis against her buttocks and said “You feel good”. He did that for a couple of minutes and then got up and left the bedroom.

The applicant returned to the bedroom, knelt behind the victim and pressed his erect penis against her vagina. He thrust his penis forward so that the victim felt that it was about to penetrate her anus. She said “Don’t do that”. The applicant responded “Sorry I didn’t mean to hurt you”. He then repositioned his penis and attempted to insert it into her vagina. He thrust his penis forward a number of times but he was unable to penetrate her vagina.

The victim heard the applicant rummaging through her cupboards and drawers. She heard the front door open and the sound of running footsteps. The victim lay still for a period of about 10 to 15 minutes and then ran down the side of the residence to gain the attention of her landlord, Mrs K. She kicked at Mrs K’s door screaming “Let me in”. Mrs K was unable to undo the bindings which held the victim’s arms. Mrs K rang the policy and held the phone close to the victim while the victim spoke with police. Eventually the victim’s boyfriend, C, arrived and undid the belts which were restraining her. Shortly afterwards the police and an ambulance arrived.

The victim was transported to the Wagga Wagga Base Hospital and a Sexual Assault Kit (SAK) was completed. Swabs were taken from the vulval and vaginal areas and her underpants were retained. As a result of the assault, the victim suffered redness around both wrists from being tied up, a reddened area on her right cheek bone about 6cms by 4cms, swelling to her right cheek, six small red marks on the right side of her abdomen, non-specific red marks on her back, bruises to her right shin, a bruise just above her right knee and soreness to her neck, chest, upper arms and lower back.

The SAK was taken to the NSW Police Division of Analytical Laboratories where it was examined. Semen was detected on her underpants. At the time no DNA suspect profiles were identified. On 26 May 2014 a DNA sample was obtained from the applicant while he was in custody in the Australian Capital Territory (ACT) for other matters. The DNA sample was analysed and returned a match to the semen profile located on the victim’s underpants.

The victim told police that she had never had any prior interaction with the applicant, nor did she have any knowledge of him. On 14 May 2015 a magistrate in the Canberra Magistrates’ Court granted an extradition order, just as the applicant finished serving a sentence of imprisonment in the ACT. The applicant was taken into custody in New South Wales on that day and has remained in custody ever since.

At the time the applicant came before her Honour, he was aged 49. He had a poor criminal record in the Children’s Court, which included convictions for stealing, forgery, malicious injury, resist arrest, serious alarm and affront on enclosed land, drive in a manner dangerous, seven counts of stealing motor vehicles and one count of break, enter and steal.

As an adult the applicant had a similarly poor record including the following convictions in NSW: five counts of break, enter and steal, two counts of stealing a motor vehicle, disqualified driver, larceny of a motor vehicle, driving while unregistered and uninsured, offensive behaviour, sexual assault, indecent assault, possessing cannabis, twenty counts of receiving, four counts of goods in custody, possessing housebreaking implements, possessing equipment for administering a prohibited drug, common assault, speeding offences, contravening a prohibition in an apprehended domestic violence order; stalk or intimidate and entering enclosed lands.

The applicant had convictions in the ACT for failing to appear, common assault, theft, possessing a prohibited substance, negligent driving (x 2), damaging property, being an unaccompanied learner, destroying Australian Government property, sexual intercourse without consent and sexual intercourse in the third degree.

In 1986 the applicant was sentenced to a term of imprisonment for 7 years for sexual assault offences, among other matters. He was released to parole in 1996. Her Honour noted that despite that long period of imprisonment, the applicant continued to re-offend.

Her Honour took into account a report from Ms Allen, a psychologist, dated 30 May 2016. The report was prepared following a consultation of 3¼ hours. Ms Allen found that the applicant was not suffering from any psychiatric illness at the time of the offending. The most that could be said of him was that his intellectual functioning was below the average range. Her Honour rejected the psychologist’s finding that the offending was “seemingly opportunistic” and unplanned. On that issue, her Honour took into account that the applicant knew the identity of the victim, had met her on a previous occasion, had a key to her apartment and was wearing a balaclava and gloves. Her Honour found, therefore, that there was a degree of planning associated with the offending.

Her Honour reviewed the applicant’s previous sexual offending and noted a common theme, i.e. anger on the part of the applicant which seemed to be associated with each episode of offending. The applicant’s sexual offending began while he was in a relationship with a woman from New Zealand, who was returning home, and this angered him. He knew the victim of the first sexual assault who was a gymnastics teacher. The applicant came upon her as she was walking down the street and decided to sexually assault her.

Following his release from custody for that offence he was living in Canberra and once again in a relationship with a woman. He was angry that he was not permitted to return to the Tumut area as a result of his earlier offending. He went to meet a friend that evening who did not turn up. This time the victim was a complete stranger. The applicant saw her walking to her vehicle, got into it and sexually assaulted her. On this occasion the applicant again reported that he was angry.

The background to the present offending was that he was unemployed, was short of money and his partner had suffered two miscarriages. He said that he decided to break into the victim’s home for financial reasons, that he did not think anyone was at home and that the assault “just happened”. He tied the victim up so she “wouldn’t run away as he searched the place”.

Her Honour rejected that explanation as being nothing more than an attempt on the part of the applicant to minimise his moral culpability. On the basis of the matters already referred to, her Honour concluded that the assault on the victim was deliberate. He had been rebuffed by the victim on an earlier occasion and he was angry. Her Honour regarded that as the only reasonable inference which could be drawn when one had regard to his past sexual offending.

In relation to objective seriousness and moral culpability, her Honour characterised the offending as follows:

Her Honour noted that the applicant had not only engaged in a series of serious sexual offences but had also committed an aggravated break enter and commit serious indictable offence, namely robbery. By reference to the guideline judgment in R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 her Honour concluded that this was a serious example of such offending. The applicant was not young nor did he have little by way of criminal antecedents. There was planning and acts of violence against a young woman at home alone. These were residential premises which were broken into at a time when persons could be expected to be at home. Her Honour considered that both specific deterrence and general deterrence had important roles to play in sentencing for these offences.

Her Honour was of the opinion that everyone should be able to feel safe and secure in the sanctity of their home and that no-one had the right to break into another person’s home, rob her, sexually assault her and leave her traumatised for the rest of her life.

Her Honour gave particular attention to the issue of whether the applicant was likely to re-offend. Given the ground of appeal and the submissions put in its support, it is necessary to set out her Honour’s observations on this subject in greater detail than would otherwise be necessary.

In relation to “special circumstances” her Honour said:

The applicant submitted that the relevance of delay to sentencing could arise at a number of levels. He submitted that in this case it was relevant to the progress of his rehabilitation during the period of delay and was relevant to whether a finding of special circumstances should be made. The applicant submitted that it was not sufficient for her Honour to simply say that delay “is not something I have taken into account”.

The applicant submitted that her Honour erred by improperly curtailing the exercise of her sentencing discretion in two ways:

The applicant submitted that it was relevant to an assessment of the likelihood of re-offending in a similar manner, whether a person has in fact re-offended in that way during the passage of many years between the offence and the date of sentence. The applicant submitted that when considering the likelihood of re-offending for an offender whose offences were committed many years ago, it was fact rather than prediction and speculation which was to be preferred when assessing the offender’s progress towards rehabilitation.

The applicant submitted that great emphasis was placed by her Honour (properly) upon his multiple convictions for sexual assaults of women in the past and the fact that the present offence occurred after he was released from custody in relation to those earlier offences. He submitted that where her Honour erred was in not mentioning at all the lapse of time from 1999 to the date of sentence and taking that into account when considering whether he was likely to re-offend.

In relation to special circumstances, the applicant accepted that her Honour was not obliged to find special circumstances by virtue of the delay of over 16 years between the commission of the offence and the imposition of sentence. He accepted that this was a matter for the sentencing judge’s discretion. The applicant’s complaint, however, was that he was entitled to have the discretion properly exercised at law. The applicant submitted that he was entitled to know why in the light of the decision in R v EGC [2005] NSWCCA 392, her Honour had not taken delay into account as a special circumstance entitling him to a variation in the statutory ratio between the head sentence and the non-parole period.

The law in relation to delay and what use can be made of it was succinctly stated in Elchiekh v R [2016] NSWCCA 225 by Price J (with whom Button and Fagan JJ agreed) where his Honour said:

It is clear why her Honour made no reference to the absence of any sexual offending between 1999 and May 2015 as a factor which could be taken into account when considering the applicant’s rehabilitation and prospects of re-offending. It was because a submission to that effect was not put to her Honour in the sentence proceedings. As this Court has said on many occasions, sentence proceedings are not to be regarded as a trial run for a subsequent appeal. Submissions, if they are to be relied upon on appeal, should be put at the sentence proceedings. It is fundamentally unfair to assert that a sentencing judge has erred in failing to take into account a factor when that factor was never put to the judge in the sentence proceedings.

In Zreika v R [2012] NSWCCA 44 Johnson J (with whom McClellan CJ at CL and Rothman J agreed) said on this issue:

It also needs to be kept in mind that the offending which was being considered by her Honour was not restricted only to sexual misconduct. The aggravated break and enter was also under consideration. It is clear from the applicant’s offending in the ACT since 1999 that he continued to have anger issues. His convictions include offences of assault, contravening an ADVO, stalking and threatening to kill.

In oral submissions it was submitted on behalf of the applicant that the absence of sexual offending between 1999 and May 2015 was so obvious that there was no need for counsel to specifically refer to that matter in the sentence proceedings. I do not agree. The issue relied upon by the applicant involved a discrete aspect of delay and it should have been put to her Honour in that context in the sentence proceedings.

Moreover, it is clear from her Honour’s detailed analysis of the evidence which was before her and addressed by counsel in the sentence proceedings, that she had reached a conclusion as to rehabilitation and prospects of re-offending which was adverse to the applicant. The addition of the factor now relied upon, while relevant to such a consideration, does not answer any of the particular matters identified by her Honour.

This was the applicant’s third episode and fourth conviction for sexual assault. They were all offences of a most reprehensible and disgusting type. The applicant’s thinking concerning this kind of offending was clearly disordered as of the date of sentencing as was set out by Ms Allen in her report:

Ms Allen set out the results of the tests which she had carried out to assess the risk of sexual re-offending in the applicant. Her conclusion was that the results “places him in the high risk category relative to other male sexual offenders”.

Her Honour in her analysis of the psychological report identified the lack of insight demonstrated by the applicant and in particular his focus on himself, rather than on his victims and the inevitable effect his conduct would have had upon them. The apparent lack of sexual offending between 1999 and May 2015 did not answer any of those findings by her Honour.

Moreover, the factor relied upon by the applicant in this appeal was specifically considered and answered by Ms Allen in her report.

If I am wrong in approaching the matter in that way and there was error in her Honour failing to take into account the lack of sexual offending since 1999, it would not cause me to reduce the sentence imposed by her Honour. There has been no other challenge to any factual finding by her Honour. Accordingly, taking those findings into account in my independent assessment, pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) and applying the principles set out in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35], [42]-[43] I have concluded that no lesser sentence is warranted in law. This is particularly so when regard is had to the applicant’s disordered mode of thinking, his lack of insight and the high risk of re-offending established by Ms Allen’s psychological testing.

In oral submissions on resentence, it was submitted that on the issue of totality the Court should have regard to the applicant’s period of custody in the ACT for the offences previously referred to. The applicant submitted that the application of Mill v R [1988] HCA 70; 166 CLR 59 required that the applicant’s total effective period in custody should be taken into account when imposing a sentence for the offences presently under consideration.

There are two difficulties with that submission. The first is that in the sentence proceedings, the applicant’s counsel requested that the commencement date for the present sentences be backdated to 14 May 2015. In accordance with that request, her Honour fixed that as the starting date for the sentence. The second difficulty is that making the offence of break, enter and commit robbery wholly concurrent with the aggravated sexual assault offence involved considerable leniency given the different criminality involved in those offences. Accordingly, the totality principle was adequately given effect to.

In relation to special circumstances, it is not correct to say that her Honour failed to take into account the extent of delay. Her Honour clearly took it into account or she would not have referred to it. What her Honour was, in effect, saying was that she declined to give that factor any weight by way of mitigation in this case. Her Honour did not err in doing so.

It is not correct to characterise these offences as “stale”. For the reasons already referred to, and as set out in her Honour’s judgment, this was not a case where rehabilitation had occurred and the community was not at risk. As can be seen from the victim impact statement of BC, the effects of the applicant’s offending continue to adversely influence her life. It was the applicant’s failure to come forward which was the sole cause of delay. In those circumstances, it was well open to her Honour in accordance with what was said in R v Kay [2004] NSWCCA 130 to refuse to make a finding of special circumstances in favour of the applicant. Her Honour gave clear and compelling reasons for why she had reached that conclusion. The sentence which she was going to impose was a substantial one so that in accordance with the statutory ratio, there was going to be ample time for supervision for the applicant on parole. There was simply no basis for altering the statutory ratio so as to reduce the non-parole period applicable to the applicant.

The orders which I propose are that leave to appeal be granted but that the appeal be dismissed.

BEECH-JONES J: I agree with Hoeben CJ at CL.

N ADAMS J: I agree that leave to appeal should be granted but the appeal dismissed for the reasons given by Hoeben CJ at CL.