Rossall v R

1. [1]

   BATHURST CJ: I agree with the orders proposed by Garling J and with his Honour’s reasons.

2. [2]

   ROTHMAN J: I agree with the reasons of Garling J and with his Honour’s proposed orders.

3. [3]

   GARLING J: On 24 March 2020, the applicant, Adam Michael Rossall, to whom I shall refer as the appellant, entered a plea of guilty in the District Court of NSW to two offences. The first was an offence of indecent assault contrary to s 61L of the Crimes Act 1900, which carried a maximum penalty of 5 years imprisonment. The second was an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 of intimidation with intent to cause fear of physical or mental harm, which also carries a maximum penalty of 5 years imprisonment.

4. [4]

   The appellant asked McLennan SC DCJ (“the Judge”) to take into account on a Form 1 on the second offence, an offence of common assault contrary to s 61 of the Crimes Act.

5. [5]

   The Judge imposed an aggregate sentence for both offences, including the Form 1 offence, of 2 years and 4 months, with a non-parole period of 14 months to commence from 6 March 2020. The non‑parole period expired on 5 May 2021 and the entire sentence will expire on 5 July 2022.

6. [6]

   His Honour indicated a sentence of 2 years for the first offence and 15 months for the second offence, including the Form 1 offence.

7. [7]

   The appellant seeks leave to appeal against the sentence and submits that a less severe sentence is warranted in all of the circumstances.

8. [8]

   For the reasons which I now express, I am of the opinion that leave to appeal ought to be granted, and that the sentence imposed by the Judge ought to be quashed. The Court should proceed to re-sentence.

Notice of Grounds of Appeal

1. [9]

   On 21 December 2020, the appellant filed a Notice which contained the following ground of appeal:

2. [10]

   After the Notice of Appeal were lodged, the appellant applied to this Court for a grant of bail. On 4 February 2021, the appellant was granted bail with a number of conditions and ordered to appear in this Court at the time his appeal was to be heard.

3. [11]

   There is no suggestion that the appellant has in any way been in breach of those conditions of bail.

4. [12]

   It is necessary in order to consider the appeal to set out in some detail the appellant’s background and the way in which the appellant’s case on sentencing was presented to the Judge.

Proceedings on Sentence

1. [13]

   The proceedings on sentence, and the imposition of the sentence itself, together with the oral delivery of his Honour’s reasons, all took place on the same day.

2. [14]

   At the commencement of the proceedings, the formalities were attended to, including the taking of pleas on the Indictment and the appellant indicating his consent to the offence on the Form 1 being taken into account.

3. [15]

   In addition to the formal documents, the Crown tendered a Statement of Agreed Facts, the applicant’s criminal history and an electronic audio recording of part of the second offence.

4. [16]

   The appellant’s prior criminal history, which consisted of a driving offence (for which he was fined) and an offence of possessing a prohibited drug (for which he was placed on a s 9 bond) was placed before the Court, but it can only be regarded as minor and of no direct relevance to the sentence proceedings.

5. [17]

   The following facts were agreed.

6. [18]

   On 7 November 2018, whilst he was affected by drugs and alcohol, the appellant attended at the residence of the complainant, his wife from whom he was separated, where she lived with their child.

7. [19]

   The appellant entered the bedroom where the complainant and their child were sleeping. He asked the child to leave the room. He locked the bedroom door and persistently and continually asked the complainant to have sex with him. She consistently refused. The appellant physically struggled with the complainant in his attempts to have sex with her. At one stage, he grabbed the complainant's hands and held them above her head. He then started groping the complainant’s breasts and rubbing his hands over them. During this incident, the complainant moved her body away to prevent the appellant having intercourse with her.

8. [20]

   The appellant then removed his clothes and placed a condom on his penis. He removed the complainant’s underwear and ripped her nightgown, although ultimately, he was unable to remove it.

9. [21]

   The ordeal lasted about 15 minutes before the appellant ended up getting off the complainant whilst saying words to the effect of “What am I doing? I’m basically raping you”. He then said some other things to the complainant. This conduct constituted the first offence of assault with an act of indecency.

10. [22]

    The appellant then left the house and went outside for a brief time before re‑entering the premises by forcefully and loudly opening the front door. The complainant became frightened at this noise and locked herself in her bedroom. The appellant was able to gain entry to the bedroom and said to the complainant words to the effect “Have you ever seen someone die ‘cause you’re about to”. The appellant then asked the complainant where the knives were. The appellant went out and obtained a pair of scissors. The complainant observed the appellant threatening to stab himself with the scissors and attempting to chop his fingers off.

11. [23]

    The complainant told the appellant to stop what he was doing because he was scaring her. In addition to some other things that were said, the complainant replied: “I am about to kill myself in like about, three seconds”. This conduct constituted the second offence.

12. [24]

    The common assault which was on the Form 1 was constituted by conduct immediately after the foregoing offences where the appellant repeatedly told the complainant to leave the room before grabbing her arm and repeatedly telling her to leave and asking where the scissors were.

13. [25]

    The following morning, at about 7am, the appellant returned to the complainant’s premises. The complainant took the appellant outside where he began jumping up and down whilst yelling and crying. The complainant observed the appellant to have cuts and blood all over his body, and he appeared to still be trying to slice his legs with a pair of scissors. The complainant asked the appellant to accompany her to hospital, but he refused.

14. [26]

    The appellant did not give evidence on sentence. A statement from the appellant was tendered as part of the material before the Judge. The Crown did not seek to cross-examine the appellant on it.

15. [27]

    The statement of the appellant included the following:

16. [28]

    A contract of employment was tendered indicating that the appellant had employment as a mechanical fitter on a project in Western Australia. One of the features of that contract was that there was a clear prohibition on an employee being under the influence of intoxicating liquor or drugs at any time whilst on the job. The contract also required all employees who were on the job to participate in random or blanket drug and alcohol testing. The contract noted that being under the influence of alcohol or drugs on the worksite was grounds for instant termination.

17. [29]

    No Victim Impact Statement was tendered by the Crown. There was no expert or other material tendered in support of the appellant’s subjective case.

18. [30]

    In the course of exchanges between counsel and the Bench, the following matters emerged:

19. [31]

    The Judge raised with the Crown their approach to the appropriateness of the sentencing options in the matter. The Crown representative said:

20. [32]

    Further exchanges between the Bench and the Crown indicated that the Crown in referring to a “supervised order” was including reference to either an Intensive Correction Order (“ICO”) or a Community Correction Order (“CCO”). His Honour drew attention to some difficulties with the imposition of an ICO given that the appellant was intending to work in Western Australia. His Honour then addressed the question of a CCO. The Crown responded:

21. [33]

    Counsel for the appellant had made written submissions which were provided to the Judge. They were relatively brief. They drew attention to the appellant’s minor criminal history, making the submission that the record was not such as would disentitle him to leniency. The submissions drew attention to the applicant’s early plea of guilty. They drew attention to the absence of a victim impact statement. They also drew attention to the fact that the applicant had recognised and accepted responsibility for his actions.

22. [34]

    They included this paragraph:

23. [35]

    The written submissions continued drawing attention to the fact that an appropriate order would be an ICO if the Court took the view that imprisonment was the only alternative. The submissions seemed also to rely on the fact that the appellant’s employment since the offence meant that he had remained free from drugs. It drew attention to the fact that community safety did not seem to loom large in the consideration. It then included these two paragraphs:

24. [36]

    When making submissions orally, in response to an exchange with the Bench about the practicability of the imposition of an ICO if the appellant was to continue with his work in Western Australia and after taking instructions from his client, counsel for the appellant submitted:

25. [37]

    Counsel also drew attention to the fact that the appellant was willingly paying child support without any court order, which was a significant reason why the appellant remained in employment.

26. [38]

    Submissions were then made about the fact that employment which had random alcohol and drug testing, was important. The submissions continued:

27. [39]

    His Honour, having described very briefly the nature of the events, then said this:

28. [40]

    After some further oral submissions, his Honour then said this to the appellant’s counsel:

Remarks on Sentence

1. [41]

   His Honour, having retired for a short period, returned to Court and sentenced the appellant with oral remarks.

2. [42]

   These remarks need to be read as a whole, and allowance has to be made for the fact that they were delivered on an ex tempore basis shortly after the conclusion of the submissions, and on the day that the appellant had pleaded guilty.

3. [43]

   His Honour recited uncontroversial matters such as the pleas of guilty, the fact that the applicant was entitled to a 5% discount, and a summary of the Agreed Facts in the matter. His Honour noted, and put to one side, any suggestion of the appellant being sentenced for the commission of any other offences. He also noted that he only used the appellant’s oral statements as indicating that it exhibited a full comprehension of the wrongfulness of the conduct in which he was engaging.

4. [44]

   His Honour concluded that the first offence was “comfortably within the midrange of seriousness” and that the second offence was “just below the midrange of seriousness”.

5. [45]

   His Honour turned to consider the appellant’s subjective circumstances. He said:

6. [46]

   His Honour reviewed the appellant’s circumstances after his arrest and since being released on bail and concluded by accepting the submission that there had been positive steps taken on the part of the appellant towards rehabilitation. His Honour was satisfied that the appellant’s prospects of rehabilitation could be described as good. He concluded that those prospects justified a finding of special circumstances.

7. [47]

   His Honour addressed the submission about the imposition of an ICO and noted that there “other sentencing considerations that prevailed in the particular case”. His Honour announced those considerations as:

8. [48]

   His Honour expressed the view that an ICO would be an inadequate punishment in all the circumstances, having regard to those sentencing considerations.

9. [49]

   His Honour dealt with an earlier submission of the reaction of the complainant in not wanting the appellant sent to prison. He said this:

10. [50]

    His Honour regarded the complainant’s view as not playing any significant role in the imposition of sentence. His Honour then proceeded to pronounce sentence. The details of the sentence are set out at [5]-[6] above.

Appellant’s Evidence on Appeal

1. [51]

   In coming to consider the appellant’s submissions, it will be necessary to first record the salient features of the further evidence which was adduced by the appellant on the appeal.

2. [52]

   Included in that material were two expert reports from Professor Stephen Woods, a forensic psychologist: the first, a principal report dated 13 November 2020 and, secondly, a supplementary report of the same date.

3. [53]

   The reports of Professor Woods were prepared about six months after the appellant was sentenced. Their admission into evidence enables the Court to obtain a picture of the appellant’s background, history and psychological state which can be regarded as being sufficiently contemporaneous to the imposition of the sentence so that, had the reports been put before the Judge they could be relied upon as meaningful and of full weight.

4. [54]

   The appellant’s history, particularly as a young man, was marked by trauma, disruption and tragedy. These are the principal components of that history:

5. [55]

   Professor Woods noted that from a psychological perspective, the cane field incident in November 2009, and a reported history of self-harm always in November, coincided with the time that the appellant committed the offences for which he has been convicted. Professor Woods drew attention to the fact that this is the month in which he witnessed the murder of his parents and when he was separated from his sister.

6. [56]

   With respect to substance abuse, Professor Woods noted that the appellant gave him a history of being introduced to smoking marijuana, being shown how to do so, by a maternal uncle, when he was about 9 years old. Upon returning to Australia, he had daily contact with another uncle who was a heavy user of marijuana, which was grown at the home where he was living. By the time he had turned 13, the appellant was regularly using marijuana and sometimes consuming alcohol with his uncle. By the age of 15, the appellant was using LSD, MDMA, marijuana and anything else which was available, on a number of occasions each week.

7. [57]

   Professor Woods noted that in the circumstances of how the appellant came to use marijuana, other drugs and consume alcohol, he came to accept that such substance use was “normal”.

8. [58]

   During the course of the assessment by Professor Woods the appellant reported experiencing these symptoms:

9. [59]

   I note that this last factor is a time-sensitive one.

10. [60]

    Professor Woods administered a range of psychological tests and concluded that the appellant was suffering from the following formal diagnoses:

11. [61]

    Professor Woods noted these last two disorders were in remission at the time of his examination.

12. [62]

    Professor Woods noted that it was possible that the appellant suffered from an Acquired Traumatic Brain Injury, but that further investigation was required. As this has not been established, it is appropriate to put it to one side.

13. [63]

    Professor Woods concluded with these comments:

14. [64]

    Professor Woods was asked to address some particular questions in his supplementary report.

15. [65]

    In the course of that report, Professor Woods expressed the opinion that, from a clinical perspective, the appellant’s life exposure to and encouraged use of alcohol and drugs by significant role models, would likely have caused him to have perceived that such behaviour was normal, which would have rendered him at high risk of resorting to substances to self-medicate his symptoms of trauma and depression.

16. [66]

    Professor Woods also expressed the view that whilst in custody, the appellant would continue to suffer from his mental disorders, which would require treatment, and that in the absence of appropriate treatment, his time in custody would be likely to aggravate his existing mental conditions.

17. [67]

    Evidence was adduced on appeal by affidavits from the appellant, the solicitor instructed to act for the appellant on the sentence proceedings (“the first solicitor”), and also by counsel who appeared on the sentence proceedings before the judge. As well, an affidavit of the appellant’s present solicitor, who had engaged in a number of conversations with the first solicitor about his knowledge, was read on the appeal.

18. [68]

    On this affidavit material, there was factual a dispute about certain of the interactions and communications between the appellant and his solicitor, and about certain of the details as to what occurred. In particular, and perhaps unsurprisingly, the recollections of the first solicitor, and that of the appellant with respect to some details as to what the first solicitor was told by the appellant, were different. The parties initially thought it appropriate for those differences to be explored in cross-examination.

19. [69]

    From the Court’s perspective, it seemed appropriate rather than attempting to resolve such factual differences through cross-examination, to concentrate (through contemporaneous documents and accepting the affidavit of the first solicitor) on the matters that were obviously known to the first solicitor and what he did.

20. [70]

    As earlier indicated, a statement of the appellant which was prepared by the first solicitor was tendered to the Court during the sentence proceedings. Included in that statement was the following:

21. [71]

    The first solicitor provided notes to counsel as part of the brief. Those notes recorded that the appellant was born in July 1990; that in November 2000 his parents were murdered in his presence in the Philippines and that he came to Australia in December 2000. It was also recorded in those notes that the appellant suffered burns in November 2009, when running through a cane field fire and was unable to work until 2011.

22. [72]

    The notes recorded that after he was granted bail, the appellant was taking an anti-psychotic medication and that he was referred to see a psychiatrist – whom he first saw on 1 February 2019. That psychiatrist prescribed an anti‑depressant for the appellant, which he continued to take. The balance of the material in those notes described the appellant’s work history, both before and after the offences, and some material dealing with his relationship with the complainant and their child.

23. [73]

    The affidavit of the first solicitor included these paragraphs:

24. [74]

    In a letter which was sent by the first solicitor to the appellant on 8 December 2019, the approach to be taken to the sentence proceedings, in the event that a plea of guilty was entered to one or more charges, and a statement of facts could be agreed, was described in this way:

25. [75]

    From this material, and accepting the first solicitor’s account of his knowledge as an accurate one, the following conclusions can be drawn: that the first solicitor knew of the fact that the appellant had suffered significant trauma at the age of 10 when his parents were murdered in his presence and when he was dislocated to Australia to live as an orphan with his grandparents; that the first solicitor knew that in November 2009, the appellant had suffered further trauma when he was burnt whilst “running through a cane field fire”; that, at the time of the offences, the appellant was clearly psychologically disturbed as he was attempting to self-harm. It was clear to the first solicitor that the offences occurred in the month of November, as did the murder of the appellant’s parents and the cane field fire incident. As well, the first solicitor knew that his client was seeing a psychiatrist and was being treated since his offending with medication, which he was taking.

26. [76]

    With knowledge of these matters, and in the absence of any statement at all by the appellant to his first solicitor about whether he thought that his earlier life traumas might be relevant to his offending, the first solicitor made a unilateral decision to avoid exploring the earlier traumatic events so as to enable the appellant to “… keep developing the positive changes he was making”.

27. [77]

    Consistently with this conclusion, the material provided to counsel to put before the Court on the plea did not include any material relating to the appellant’s early life or his psychological or psychiatric state, with the inevitable result that the outline of submissions made in writing to the Court by counsel touched only briefly on the appellant’s early history and psychological state and then in only two places. They were:

28. [78]

    On the appeal, an affidavit of the appellant was read. The basis for its admission was that it contained material which, had the first solicitor explored all of the issues surrounding the appellant’s early life and upbringing, these facts and matters would have been disclosed to the first solicitor. As well, it attested to the truth and accuracy of the history provided to Professor Woods and upon which Professor Woods relied in part to formulate his expert opinion. Such factual material was of obvious relevance to the sentencing proceedings.

29. [79]

    The affidavit of the appellant included the following:

30. [80]

    Later in the affidavit, the appellant deals with his realisation about self-harm. He said this:

31. [81]

    As well, the affidavit of the appellant gives a detailed description of what occurred on the evening he was burnt in the cane field fire.

Relevant Legal Principles

1. [82]

   It is established by authority that profound childhood deprivation, or the experience of growing up in an environment surrounded by alcohol abuse and violence, can compromise a person’s capacity to mature and to learn from experience. Such early adverse effects do not necessarily diminish with the passage of time: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR571 at [43]-[44].

2. [83]

   As was pointed out in Bugmy, childhood exposure to extreme violence and alcohol abuse may explain an offender’s recourse to violence when frustrated, such that their moral culpability, and their inability to control their impulses, may be substantially reduced.

3. [84]

   As well, in the course of sentencing, the fact that an offender is or was suffering from a mental disorder or other mental affect is relevant. Either can have the effect of reducing a person’s moral culpability, and have an ameliorating effect on general deterrence, retribution and denunciation: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [53].

4. [85]

   The ways in which mental illness or conditions may affect the sentencing process were comprehensively described in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]. These matters do not need to be set out in detail here.

5. [86]

   These authorities, which set out well known sentencing principles, describe matters which are relevant for a court to consider when sentencing an offender. These principles serve to show that the factual matters contained in the appellant’s affidavit, and the expert diagnoses and opinions of Professor Woods to which earlier reference has been made, were all matters of real relevance and significance for the Judge to consider when imposing a sentence. They could have, and should have been, but were not, obtained by the appellant’s first solicitor, for the purpose of adequately and properly presenting the appellant’s case to the Judge.

6. [87]

   But the mere fact that more fulsome material could have been presented to the Judge hearing submissions on the sentence, is not of itself and without more, sufficient to result in a successful appeal. That is because this Court is a court of error, and as a matter of principle, an appellant is not entitled to simply have this court re-sentence them on the basis that a second attempt at the presentation of evidence may produce a more favourable outcome.

7. [88]

   As Beech-Jones J said in John Wayne Tsiakas v R [2015] NSWCCA 187 at [43]-[44]:

Discernment

1. [89]

   In this matter, as is not contentious, the first solicitor in preparing the matter for the sentence proceedings elected to concentrate on the progress which the appellant had made with respect to his addiction to drugs and alcohol after the offences occurred, and to downplay by not addressing the appellant’s traumatic upbringing. The progress which the appellant had made since his offending was no doubt a relevant matter.

2. [90]

   But any concentration or emphasis on this matter was not inconsistent with investigating and presenting to the Court all of the appropriate evidence about the background to the appellant’s traumatic upbringing; an examination of the mental state of the appellant at the time of the offences and its connection to the appellant’s early childhood experiences; his severe historic trauma; and what was at the least an apparent lack of coincidence between the three events which occurred in the month of November, namely his parents’ murder, his injury whilst running through the cane field fire, and the offences which were before the Court for sentence.

3. [91]

   Of particular significance was that the material would have provided to the Judge clear evidence of:

4. [92]

   It cannot be doubted that this material was highly relevant to the Judge and would have led to a different result in the exercise of his sentencing discretion.

5. [93]

   The consequence of this approach taken by the solicitor was that the sentencing Court proceeded on the basis of incomplete information: see Pym v R [2014] NSWCCA 182 at [84] and that the sentencing Court was deprived of a proper consideration of the appellant’s background and circumstances: Raymond John Munro v Regina [2006] NSWCCA 350 at [25].

6. [94]

   The absence of this material being obtained and being put before the Judge, having regard to the ease with which it could have been obtained, namely, a detailed interview with the appellant, and the referral of the appellant to a psychologist or psychiatrist to obtain an expert report, has had the result, in my opinion, that the appellant’s sentencing process was significantly unfair to him and that a miscarriage of justice has occurred.

7. [95]

   For that reason, I would uphold the appeal and quash the sentence imposed by the Judge in the District Court.

Re-sentence

1. [96]

   Both parties indicated to the Court that in the particular circumstances of this matter, they preferred that this Court re-sentence the appellant rather than remitting the matter to the District Court for a further sentencing hearing, particularly in light of the passage of time which had already occurred, and the delays which would inevitably occur.

2. [97]

   Accordingly, it is necessary for this Court to re-sentence the appellant on the basis of all of the material which has been set out at length above including the facts and circumstances surrounding the offending and the appellant’s personal circumstances, including the expert opinion.

3. [98]

   The appellant had no relevant previous criminal history.

4. [99]

   The Judge assessed the first offence as being in the mid-range of objective seriousness and the second offence as being slightly below the mid-range.

5. [100]

   Authority of this Court requires a consideration of the moral culpability of an offender including when it is reduced by factors such as his upbringing to be taken into account when assessing the objective seriousness of an offence: see Kelly v R [2021] NSWCCA 173 at [38]-[39] per Bell P (Rothman and Bellew JJ agreeing); Fisher v R [2021] NSWCA 91 at [70] per Fullerton J.

6. [101]

   In my assessment, on the whole of the evidence, the appellant had a much reduced moral culpability for these offences as a result of his traumatic and deprived early life, and the ongoing effects of his PTSD, particularly when combined with his early introduction to the “normality” of illicit drug use and alcohol consumption.

7. [102]

   Accordingly, taking into account the obvious context that these were offences of domestic violence, I would nevertheless assess both offences as falling below the mid-range of seriousness, and as being only slightly above the low range of these offences.

8. [103]

   Like the Judge, I would be satisfied that there was little risk of the appellant re‑offending and that he had taken significant steps towards his rehabilitation with good prospects.

9. [104]

   In considering the appropriate sentence, I have had regard to the provisions of ss 4A and 4B of the Crimes (Sentencing Procedure) Act 1999. Also I have paid particular attention, noting that these were domestic violence offences, to the safety of the victim of these offences, the applicant’s wife (from whom he is separated). However, I note that she was present during the sentencing proceedings before the Judge and was supportive of the appellant not being sentenced to a term of imprisonment. Whilst this, of course, is not decisive, it does indicate that she did not herself have any fears for her personal safety. She did not make any victim impact statement.

10. [105]

    The conduct of the appellant generally, particularly since he has been charged, does not give rise to any concern on my part about the protection of the victim, or the protection of the public more generally.

11. [106]

    This is a case in which it could be strongly argued that all of the features, when taken together, do not suggest that the relevant threshold in s 5 of the Crimes (Sentencing Procedure) Act has been passed. It is open to conclude that these offences could be finalised without the imposition of a term of imprisonment.

12. [107]

    However, having regard to the nature of the offences, and all the facts, matters and circumstances, the better view is that the threshold has been reached, and it is appropriate to impose a term of imprisonment.

13. [108]

    I would re‑sentence the appellant to an aggregate term of 9 months non-parole period and a further 9 months on parole, totalling a sentence of 1 year and 6 months, commencing 6 March 2020. I would indicate the following sentences:

14. [109]

    Were it not for the fact that this is a re-sentence after an appeal, and that the whole of the appellant’s non-parole period has been served, I would have ordered that the whole of the sentence be served by way of an ICO. But such an order is now an inappropriate one to be made.

15. [110]

    I note that prior to being released on bail pending his appeal, the appellant had served 10 months and 28 days by way of his term of imprisonment. It follows that the non-parole period of the sentence which I propose has been fully served and the appellant is part-way through his parole period.

16. [111]

    Having regard to the conditions imposed on the grant of appeal bail, with which the appellant has complied, I see no reason to specify any particular conditions of parole which need to be imposed.

17. [112]

    I propose the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Quash the sentence imposed in the District Court of NSW on 24 March 2020.

    3. (3)

       In lieu of that sentence, impose an aggregate term of imprisonment of 1 year and 6 months commencing 6 March 2020 and concluding 5 September 2021. Of this sentence, fix a non-parole period of 9 months commencing 6 March 2020 and concluding on 5 December 2020.