Evans v R

1. [1]

   HOEBEN CJ at CL: I agree with Adamson J and the orders which she proposes.

2. [2]

   DAVIES J: I agree with Adamson J.

3. [3]

   ADAMSON J: The applicant seeks leave to appeal against an aggregate sentence imposed by McLennan DCJ SC in the District Court at Tamworth on 3 March 2017. The aggregate sentence was for a term of 5 years 6 months commencing 3 May 2016 with a non-parole period of 3 years 6 months. The applicant was sentenced for two counts, the first of which included four offences on a Form 1 under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). He was also sentenced for an offence of common assault which was on a certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (the s 166 certificate).

4. [4]

   The indicative sentences were as follows:

5. [5]

   The applicant seeks leave to appeal on the following ground:

6. [6]

   The applicant requires an extension of time as his Notice of Intention to Appeal (NIA) was lodged on 6 March 2017 and accordingly expired on 6 September 2017. The Notice of Appeal/ Application for Leave to Appeal was filed on 11 October 2017. The respondent does not oppose an extension of time in which to appeal. I would be disposed to allow an extension of time.

The sentence hearing

1. [7]

   At the sentence hearing the Crown tendered the indictment; the s 166 certificate; the Form 1 schedule; a statement of agreed facts; the applicant's criminal and custodial antecedents; the pre-sentence report of Greg Malmgren dated 16 February 2017; and an undated psychological report of Teena Kennedy.

2. [8]

   The applicant relied upon a psychological report of Katie Martens dated 13 February 2017 and provided statistics collated by the Judicial Commission of New South Wales statistics in respect of the offences for which he was to be sentenced.

3. [9]

   The following narrative is largely taken from the statement of agreed facts.

4. [10]

   The complainant and the applicant had been in a relationship since about 2008. They married in 2012 and have three children born in 2007, 2009 and 2011 respectively. Between June and July 2012 they lived in a granny flat at Attunga, which was attached to a main residence, where the complainant’s mother lived.

5. [11]

   One evening in June or July 2012 the applicant and the complainant were arguing, in the course of which the applicant threw a tin of baby formula into the plasterboard wall of the granny flat. The applicant grabbed the complainant by the throat and forced her to the floor. The complainant’s mother yelled at the applicant to release the complainant, which he eventually did. The complainant suffered soreness to her neck and shoulders.

6. [12]

   At some time between July and October 2012 the complainant and the applicant were arguing in their bedroom in the granny flat. The complainant’s mother came into the unit to see whether the complainant was all right. The applicant threw the complainant on their double bed, grabbed her shirt and threw her onto a smaller bed belonging to one of their children. He grabbed her by the throat and pushed her against the bedroom wall. The complainant’s mother yelled for him to stop. The applicant released the complainant, who suffered soreness to the neck and shoulders, as well as bruising to the back, neck and arms.

7. [13]

   After these assaults the complainant, the applicant and their children moved to another residence in Attunga.

8. [14]

   In November 2015 the applicant and the complainant separated. The applicant went to reside in Oxley Vale with the complainant's brother, Michael.

9. [15]

   On Sunday, 10 January 2016 the complainant went bushwalking with a male friend, Tim, who was known to the applicant. While she was out walking, the applicant came to her residence at Attunga to look after their children.

10. [16]

    When the complainant returned at around 9.30pm the applicant asked her who she had been with that day and whether she was sleeping with anyone and, in particular, with Tim. The complainant and the applicant continued to argue for some time until the complainant told the applicant she was going to have a shower and go to bed. The applicant followed her to her bedroom and grabbed her by the neck, threw her to the ground, grabbed her by the crotch of her shorts and pulled her up from the ground. He held her by her crotch and shirt and shook her before throwing her onto the bed and pulling at her shorts. He then pulled her from the bed and onto the ground by her shorts and shirt. The applicant then lifted her by her shorts and threw her on the bed again. This caused her shirt and pants to tear.

11. [17]

    He took hold of her underwear and pulled it down. The applicant said words similar to, “If you want to be a slut I will show you what a real whore is.” The applicant placed his hand and fingers on and around her vagina and moved his hands vigorously. She screamed. He covered the complainant's mouth with his hand and held her while he continued to move his hands and fingers on and around the complainant's vagina. She tried to say “stop” while the applicant had his hand placed over her mouth.

12. [18]

    After about five minutes he removed his hand and started to cry. He said, “I am sorry, I can't believe that I just done that.” He became very quiet and withdrawn. The complainant, who had a sore back and bruises on her chest, packed some clothing and left the residence in her car. She drove to Manilla and spent the night in the car before going to work the following day.

13. [19]

    At 1.32am the applicant sent a text message to the complainant which read, “Hay Lisa its Sheldon you can contact me on this number if you need me I'm very sorry Lisa.” At 2.07am the applicant sent a text message to the complainant which read, “I'll leave you alone Lisa you deserve a lot better man than me you'll always be in my heart and you have a massive future ahead of you the house is all yours if u need any jobs done around there you can always ring me.”

14. [20]

    On the afternoon of 11 January 2016 the complainant told a friend that the applicant had assaulted her the previous night.

15. [21]

    At 2.49am on 12 January 2016 the applicant sent a message to the complainant which read, “I know I fucked up the other day but I don't know how we let it get this far I thought I was going to be with you forever love you lis hope your having fun lis.” At 3.45am on 12 January 2016 the complainant sent the applicant a message indicating that she was considering going to the police. The applicant replied, “Ok no worries.” Around this time the complainant told her mother and her sister that the applicant had sexually assaulted her.

16. [22]

    In the early hours of Saturday, 23 January 2016 the complainant was at her home in Attunga when the applicant sent her a number of SMS messages before coming to the residence. She opened the door and allowed him to enter. They had a heated discussion. The applicant grabbed the complainant's phone from her and demanded she give him her PIN code. The complainant grabbed the phone from the applicant, ran from the house and down the driveway. The applicant ran after her, tackled her to the ground, and rolled her over. The applicant sat on the complainant and grabbed the phone from her. The applicant threw the phone towards the ground which smashed it.

17. [23]

    The complainant got up and ran towards her home. The applicant ran after her and tackled her to the ground again. The applicant placed his hands around the complainant's throat and said, “I am going to fucking kill you.”

18. [24]

    A neighbour rang Triple-0 and police attended a short time later. They observed the complainant and the applicant to be standing outside the Attunga residence. The complainant had grass clippings and dirt up the side of her legs, and on the front of her pyjamas.

19. [25]

    The complainant provided a recorded statement to Police during which she said that on Sunday, 10 January 2016 the applicant had sexually assaulted her.

20. [26]

    The applicant was cautioned and arrested and placed in a police vehicle. The applicant was conveyed to Tamworth Police Station, introduced to the custody manager and received legal advice via the telephone. At about 9.15am the applicant took part in an electronically recorded interview of a suspected person (ERISP) but refused to comment on any of the allegations.

21. [27]

    On 23 January 2016 the complainant went to Tamworth Police Station and handed police the clothing she had been wearing at the time of the assault on 10 January 2016.

22. [28]

    A Provisional Apprehended Domestic Violence Order (ADVO) was made. The mandatory conditions were imposed with additional conditions that the applicant must not approach or contact the complainant except through a legal representative or pursuant to orders under the Family Law Act 1975 (Cth) (condition 6) and that the applicant must not destroy, damage or interfere with the complainant's property (condition 11).

23. [29]

    On 24 January 2016 the applicant was granted bail at Tamworth Local Court with the following conditions:

24. [30]

    On 2 February 2016, Tamworth Local Court made an interim ADVO. This order was made with the mandatory conditions and an order that the applicant must not contact the complainant by any means except through the defendant's legal representative (condition 7); or do act with intent to influence witness (condition 2).

25. [31]

    From February 2016 the applicant and the complainant communicated by mobile phone in relation to the children and other domestic issues. The complainant used her mobile phone number and the applicant had been using a phone registered to a person named 'Brent Bake'. The complainant had spoken to the applicant when he was calling her from this number and recognised his voice. The content of the SMS messages sent from this number related to things of which the applicant had knowledge but Mr Bake did not.

26. [32]

    In the period 10 February 2016 to 6 April 2016 the applicant contacted, or attempted to contact, the complainant more than a thousand times. On 12 February 2016 the applicant attempted to call the complainant 23 times. On 14 February 2016 the applicant attempted to call the complainant on 20 occasions and sent five SMS messages. On 24 February 2016 the applicant wrote, “I'm sorry Lisa when I look at all this I can see how this is harassing u.” The communications between February and April 2016 were the subject of the contravene ADVO on the schedule to the Form 1.

27. [33]

    On a number of occasions from 23 February 2016 to 9 March 2016 the applicant asked the complainant by text message to withdraw the charges against him. The content of these messages (with the complainant’s responses, where relevant, in italics) was as follows:

28. [34]

    The complainant showed these messages to police on 6 April 2016. On 7 April 2016 the complainant made a further statement to police. Police formed the view that the applicant was in Queensland, in breach of his bail conditions. On 5 May 2015 Police received information that the offender had returned to Tamworth. The applicant was asked by Police to attend Tamworth Police Station. He did so and was placed under arrest and charged with certain offences. He declined to take part in a record of interview. The applicant was refused bail in Tamworth Local Court at 5 May 2016 and remained in custody until he was sentenced on 3 March 2017.

29. [35]

    In his written submissions in the Court below the applicant submitted that “there ought be a substantial measure of concurrence between the sentences imposed for the two counts on the indictment”. In the course of the hearing the applicant accepted that “there must be a measure of accumulation” in the sentences. The Crown submitted that there ought to be a significant degree of accumulation to reflect the very different character and qualities of the offending.

The remarks on sentence

1. [36]

   In the remarks on sentence the sentencing judge said of the seriousness of count 1:

2. [37]

   His Honour noted the facts relating to the Form 1 offences (set out in more detail above). Of the effect of the Form 1 offences on the sentence for count 1, his Honour said:

3. [38]

   Of the seriousness of count 2, the sentencing judge said:

4. [39]

   His Honour noted that he had regard to the totality principle in arriving at his final conclusion as to the aggregate sentence.

5. [40]

   Of the applicant’s subjective case, the sentencing judge said:

Alleged manifest excess

1. [41]

   The only sentence imposed was the aggregate sentence. There is no appeal from an indicative sentence, although manifest excess in an indicative sentence may reveal why an aggregate sentence is manifestly excessive.

2. [42]

   The applicant submitted that the sentence indicated for count 1 was excessive. He submitted:

3. [43]

   This submission would appear to misapprehend the purpose and effect of ss 32 and 33 of the Crimes (Sentencing Procedure) Act, which is both to permit and require the sentencing judge to take into account the offences on the Form 1 when imposing a sentence for the principal count (in this case, count 1). The only relevant limitation is that provided for in s 33(3), namely that the sentencing judge may not impose a sentence for the principal count that is greater than the maximum penalty for that offence charged in the principal count. Thus, necessarily, the sentence for count 1 was greater, having regard to the matters on the Form 1, than it would have been without them. Further, the criminality covered by the Form 1 was varied in conduct and time and did not overlap with the conduct in count 1. I do not discern any excess in the sentence indicated for count 1 which would account for any alleged manifest excess in the aggregate sentence.

4. [44]

   The applicant also submitted that the indicative sentence for count 2 was excessive, which was said to have led, in part, to the manifest excess of the aggregate sentence. The applicant submitted, with respect to the sentence indicated for count 2:

5. [45]

   Section 323(a) of the Crimes Act provides:

6. [46]

   It can be seen from the terms of s 323(a) of the Crimes Act that it covers a very broad range of conduct, including procuring a witness to give false evidence, as well as persuading someone not to attend to give evidence and many variations in between. Where a single offence covers a broad range of conduct, it will often be necessary to have regard to the range of sentences which tend to be imposed for other offending of a like nature. It is within the common experience of courts that many charges of domestic violence cannot be prosecuted because the defendant manages to persuade the complainant, including by threatening violence, not to give evidence against him. Conduct of this nature against complainants is inimical to the interests of justice and the administration of justice. The perpetrators of domestic violence may, by committing offences under s 323(a) of the Crimes Act, effectively immunise themselves from prosecution.

7. [47]

   Although the sentencing judge considered the offence in count 2 to be particularly serious, this classification is, in my view, insufficient to distinguish it from other offences covered by the section, where an offender may threaten violence against a person for giving evidence or try to inveigle a witness to tell lies in court, or bribe a witness. That these features did not form part of the circumstances of count 2 is an indication that the seriousness of the applicant’s conduct was, compared with other offences against s 323(a), not particularly high. In so far as one can discern a motive from the text message, his motives appear to include the desire to save legal costs; his wish to retain his house; his concern for his career; and his concern for their three children.

8. [48]

   There is a further matter which is relevant to the assessment of the seriousness of count 2. The agreed facts under the heading for count 2 referred to the large number of times on which the applicant communicated, or tried to communicate, with the complainant between February 2016 and March 2016. These communications also constituted breaches of the ADVO. The Form 1 included, as set out in the table above, the offence of contravene ADVO and covered the same period between February and March 2016. While the actus reus of the contravene ADVO offence (on the Form 1) was the same as the influence witness offence (count 2), the commission of the count 2 offence involved a distinct mental element of “intending to procure, persuade, induce or otherwise cause any person called or to be called as a witness” not to attend to give evidence.

9. [49]

   Of the many communications between February and March 2016 only 16 text messages constituted the offending conduct under count 2. The evidence did not reveal the content of the other communications. It is therefore not possible to infer that these communications were made with the intention of inducing the complainant not to give evidence against the applicant. Thus, while the other communications were capable of forming part of the circumstances surrounding count 2, the seriousness of count 2 must be adjudged by the content and timing of the 16 text messages.

10. [50]

    In my view the sentence indicated for count 2 was excessive, having regard to the matters referred to above, and led to the aggregate sentence being excessive. The content of the 16 text messages did not include any threat of violence. Although the applicant expressed the sentiment in the first text message that he did not consider life without the complainant to worth living I do not regard the message as being tantamount to a threat to commit suicide. Rather, I regard that particular text message as the histrionic plea of a man who had difficulty coming to terms with the loss of his relationship with the complainant. I do not discern a threat of violence in any of the text messages. Nor do I detect any indication that the applicant proposed to stalk the complainant or prevent her in any way from having another relationship if, in spite of his pleas, she gave evidence against him.

11. [51]

    In my view, the sentence indicated for count 2 led to the aggregate sentence being manifestly excessive. Another factor which resulted in the aggregate sentence being manifestly excessive was the substantial effective accumulation having regard to the sentences indicated. Although the offending conduct covered by the two counts and the s 166 certificate covered events in 2012 and 2016, there was some communality in the conduct within these periods which required, in my view, a greater level of effective concurrence than was reflected in the aggregate sentence. It follows that this Court is obliged to re-sentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Re-sentencing

1. [52]

   The facts of the offences and the subjective circumstances are set out above, as are the relevant legislative guideposts of: the maximum penalties, which, in the case of the offence on the s 166(1) certificate, is equivalent to the jurisdictional maximum of the Local Court.

2. [53]

   I accept that the applicant pleaded guilty at a relatively early opportunity and that a discount of 20% is appropriate and is to be applied before arriving at the indicative sentences.

3. [54]

   The material before this Court is the same as that which was before the sentencing judge with the minor addition that the Crown has conceded that the applicant has not committed any significant offences while in custody. The applicant was born in 1985. He continues to have a good, supportive relationship with both of his parents. He is presently 32 years old. Prior to the present offences the applicant had a relatively minor criminal record. Until his arrest on 3 May 2016 (see above) he had never been in gaol before. His relationship with the complainant, with whom he had three children, lasted almost ten years and ended in November 2015. It was the complainant’s decision to end the relationship. She commenced another intimate relationship with a person called Tim (referred to above), whom she and the applicant had known before the separation.

4. [55]

   According to the pre-sentence report, the applicant was assessed on Static-99R to be at low to medium risk of sexual re-offending.

5. [56]

   I am satisfied that there are special circumstances as it would be desirable for the applicant to have a lengthy period under supervision on his release to assist him to deal with anger and stress and to help him respond in a non-violent way to rejection or frustration.

6. [57]

   In my view it is appropriate to impose an aggregate sentence. Accordingly I am obliged to indicate the sentence that would have been imposed for each of the counts and for the offence on the s 166 certificate: s 53A(2) of the Crimes (Sentencing Procedure) Act.

7. [58]

   The offence in count 1, although of limited duration, was both violent and abusive. This Court is obliged to have regard to the four offences on the Form 1 set out in the table above, which include disparate conduct which occurred in the course of the relationship between the applicant and the complainant and following their separation. Having regard to the seriousness of the offending conduct incorporated by the offences on the Form 1, together with count 1, I propose an indicative sentence for count 1 (after applying the deduction of 20% for the plea of guilty) of 3 years.

8. [59]

   The offence in count 2 was, for the reasons given above, well below the mid-range of seriousness. I propose an indicative sentence for count 2 of 1 year (after applying the deduction of 20% for the plea of guilty).

9. [60]

   The offence of common assault on the s 166 certificate was particularly violent. I propose an indicative sentence for this offence of 8 months (after applying the deduction of 20% for the plea of guilty).

Proposed orders

1. [61]

   I propose the following orders:

   1. (1)

      Extend the time for filing the application for leave to appeal to 11 October 2017.

   2. (2)

      Grant leave to appeal against sentence.

   3. (3)

      Allow the appeal against sentence.

   4. (4)

      Quash the aggregate sentence imposed by McLennan SC DCJ on 3 March 2017.

   5. (5)

      Impose an aggregate sentence of imprisonment for 3 years and 6 months to commence on 3 May 2016 and expiring on 2 November 2019 with a non-parole period of 2 years expiring on 2 May 2018.

   6. (6)

      The offender will be eligible for release on parole on the expiration of the non-parole period on 2 May 2018.