Veljanoski v R

1. [1]

   HARRISON J: I agree with Davies J.

2. [2]

   DAVIES J: The applicant pleaded guilty in the Local Court to the following offences:

3. [3]

   The applicant was sentenced by his Honour Judge Woods QC in the District Court on 4 August 2020. His Honour imposed an aggregate sentence of five years and eight months’ imprisonment commencing 23 March 2020 and expiring 22 November 2025 with a non-parole period of three years and eight months expiring 22 November 2023.

4. [4]

   The indicative sentences were as follows:

5. [5]

   The applicant now seeks leave to appeal on the following grounds:

The offending

1. [6]

   All but sequence 5 of the offences took place within a short period of time on 22 July 2019. The offence in sequence 5 took place on 15 August 2019.

2. [7]

   At 5:08pm on 22 July 2019, the victim KR, age 51 years, was walking on Mulda Street, Brownsville. The applicant’s burgundy car pulled up against the kerb. The applicant was the only occupant of the vehicle. The windows of the vehicle were down.

3. [8]

   The applicant said, “Hey” to KR, but she continued to walk without acknowledging him. The applicant then called out, “Hey babe, would you like to ride this?”, but KR replied, “You’ve gotta be joking”. During the conversation, KR observed that the offender had his penis exposed and was masturbating himself. The applicant then drove away. KR noted the registration of the car and made an immediate report to Dapto police station.

4. [9]

   At approximately 5:30pm on the same day, the victim HC, aged 15 years, was walking home from a friend’s house along Fowlers Road, Koonawarra. A vehicle driven by the applicant drove up beside her. The applicant said to HC, “Do you need a lift?”, to which she replied, “No”. The applicant then told her to get in the car, and said he would “Lick her out”. HC replied, “No”, and ran off. HC looked into the vehicle during the conversation, and observed the applicant to be masturbating his erect penis. She ran from the scene and saw that the applicant’s vehicle travelled ahead of her in the same direction. She then called the police, ran home and disclosed the offence to her mother.

5. [10]

   At about the same time as the previous incident, the victim CM, aged 11 years, was walking home from a friend’s house on Galong Crescent, Koonawarra. As she approached the cul-de-sac near Gowrie Street, Koonawarra, a small red vehicle came around the cul-de-sac. The vehicle pulled up beside her, and the applicant was in the driver’s seat. The applicant said, “Hi, how are you?” to which she replied, “Hi”. He then said, “Will you jump in the car with me?” to which she replied, “No”. CM observed that the driver’s side window was up, and he was speaking to her through the passenger window which was down. She ran to the closest house and sought help from the occupant who walked her home.

6. [11]

   At about 5:50pm on the same day, HV, aged 21 years, was walking along a footpath near a restaurant on the Princes Highway at Dapto. As she was about to cross a driveway, a red/burgundy coloured car pulled in front of her. This vehicle was driven by the applicant, who opened the door of his vehicle. His hands were down towards his lap. He said to HV, "Do you want a lift?" and she replied, "No". The applicant then told her to get into the car but she said “no”. He again asked her to get into the car and his voice became aggressive. She again refused and continued to walk away. She got her phone out, and the applicant drove away.

7. [12]

   At about 2:00pm on 15 August 2019, KG, aged 66 years, parked her car near the bike track at Towradgi Beach. As she approached the track she decided to return to the car to get her walking stick. As she was walking back to the bike track, a maroon BMW pulled up. The passenger window was down and the applicant was in the driver’s seat. The applicant said to KG, "Can you tell me which way Thirroul is?" KG replied. "You just go back up the road and turn right”. The applicant said, "I can’t hear you, come here."

8. [13]

   As KG approached the vehicle, she observed that the applicant had his hand down his pants and was attempting to undo his zipper and remove his penis. KG said, “I’m not having any of that carry on, piss off." The applicant then drove away. KG took note of the registration of the vehicles and contacted the police on her mobile phone.

9. [14]

   A little under two hours later, the applicant was stopped driving a maroon BMW on the Princes Highway, Fairy Meadow. He was drug tested, and a positive result was returned.

10. [15]

    On 4 October 2019, police attended his residence and arrested him. The red coloured BMW was registered to the applicant’s father. A Form of Demand was placed on him to nominate the driver of the car on the days and times of the offence. He told the police he had a poor memory and was unable to nominate anyone. He said that his son had not driven the vehicle since July 2019 but CCTV footage subsequently obtained clearly showed the applicant driving the vehicle after July 2019.

Subjective matters

1. [16]

   Two psychological reports were relied upon by the applicant at the sentence proceedings. In addition, the applicant gave evidence at the sentence proceedings. During his evidence, the applicant apologised to the victims, and accepted that he had harmed them by his behaviour.

2. [17]

   The first report from the psychologist Jessica Cortes was dated 10 October 2019 following an assessment on 1 October 2019. The second report, following the applicant’s plea, was by Sarah Van De Velde dated 31 July 2020.

3. [18]

   Ms Cortes administered a number of psychometric tests to assess the applicant’s cognitive abilities and form an opinion about his personality. The intelligence testing demonstrated that the applicant was well within the Below Average range. His verbal skills gave him an age equivalence of 15 years and his non-verbal skills an age equivalence of eight years and six months.

4. [19]

   Ms Cortes determined that the applicant met the criteria for the following diagnoses:

5. [20]

   Ms Cortes also considered that he met a provisional diagnosis of Attention- Deficit Hyperactivity Disorder.

6. [21]

   The applicant was born in Australia on 11 June 1986 to Macedonian parents. At the time of the offending he was 33 years old and is now aged 35.

7. [22]

   He appears to have had a serious motor vehicle accident when, at the age of five or six years, he ran onto the road to retrieve a ball. He was struck by the car and remembers that he swallowed his tongue.

8. [23]

   He reported a reasonably unremarkable upbringing, although he was subject to physical discipline from his parents between the ages of ten and 13 years. His parents were strict, and there were problems within the marriage leading to frequent arguments between his parents. His father appears to have had a gambling problem.

9. [24]

   Between the ages of 15 and 20, he seems to have got into trouble from time to time. He said he witnessed many physical fights amongst the people with whom he associated, and he was also involved in these altercations. He said he found it difficult to understand people and began to have "trust issues", particularly between the ages of 18 and 26 years.

10. [25]

    The applicant found school boring, and he had concentration and attention difficulties. He said he was bullied throughout primary school.

11. [26]

    In high school he said he had difficulties such as processing words and sentences. He was suspended from school in year 9 for being involved in fighting.

12. [27]

    He worked a number of jobs including at a local pizza restaurant, in supermarkets, in a telecommunications job, and as a contractor doing labouring.

13. [28]

    Ms Cortes concluded that at the time of the offending, the applicant was significantly and adversely affected by his mental health conditions which significantly contributed to his offending. She said the presence of co-morbid Oppositional Defiance Disorder/Conduct Disorder in ADHD is associated with more aggression and delinquency, greater academic underachievement, greater risk of substance abuse, increased social maladjustment and lower self-esteem.

14. [29]

    The applicant was examined by Ms Sarah Van De Velde in July 2020. The applicant told her that on the day that the first four offences were committed, he used $100 worth of methylamphetamine and then smoked a joint of cannabis. He became aroused. He considered going to a brothel, but could not afford it. He said that he went for a drive to try to “pick up females”, and exposed himself. It provided sexual enjoyment. He attributed his behaviour to substance use. He expressed regret, shame and remorse.

15. [30]

    Ms Van De Velde noted that the applicant described a history of problematic illicit substance use, and depressed and anxious symptoms. She said that during assessment he appeared to have significant difficulty in comprehending and responding to questions. Psychometric testing indicated that he engaged in impression management during assessment. She said his behaviour during assessment appeared consistent with a previous diagnosis of intellectual disability. She considered that his risk for future sexual reoffending was above average.

16. [31]

    In terms of formal diagnoses, she said that the applicant was suffering from:

17. [32]

    Ms Van De Velde said that assessment supported a previous initial diagnosis of Mild Intellectual Disability, but further assessment was required to confirm that diagnosis.

18. [33]

    Ms Van De Velde assessed the applicant’s level of cognitive functioning as being in the Borderline to Low Average range. When questioned about the offences, the applicant was self-critical, and expressed shame and regret, and demonstrated some limited insight into his behaviour. However, his scores on a test examining impression management and self-deception were elevated, indicating that he engaged in impression management. The scores were elevated to the degree where the test would be likely considered invalid.

19. [34]

    Ms Van De Velde said that the applicant appeared to demonstrate a pattern of impaired problem solving, for example, engaging in substance abuse and sex to cope, and committing the offences when aroused but without money to engage a sex worker. She considered that he experienced significant negative emotions and loneliness, and that when he did so, he was more likely to focus on sexual thoughts, and to engage in sexual behaviour and other impaired problem-solving strategies in a bid to regulate his emotions.

Remarks on Sentence (ROS)

1. [35]

   Having set out the facts of the offending, the sentencing judge noted the applicant’s criminal history. His Honour made particular mention of an offence of intimidation in 2015 which, his Honour said, gave a hint of the conduct involved in several of the present offences.

2. [36]

   His Honour noted the victim impact statements from CM (the 11 year old girl) (sequence 6) and KR (the 51 year old woman) (sequence 1). His Honour said that the absence of victim impact statements in the other matters did not cause him to think that there would have been no psychological impact caused by those offences. He said that, in fact, he drew an inference that there would have been a significant impact psychologically from the behaviour.

3. [37]

   His Honour noted that the offences were committed whilst the applicant was on conditional liberty. He noted that the applicant had failed to persevere with rehabilitation programs in relation to drugs.

4. [38]

   His Honour considered that general deterrence was not a significant consideration because the offences were “so out of the normal”. However, his Honour said that he accepted the Crown’s submission that protection of the community should be a significant consideration.

5. [39]

   His Honour said that the objective gravity of the offences involving the 11 year old girl and the 15 year old girl were above the midrange. In relation to the other offences, he considered that they were in the midrange of objective seriousness. Finally, his Honour accorded a discount of 25% for the utilitarian value of the early plea by the applicant and his contrition.

6. [40]

   His Honour indicated the sentences that would have been imposed had he sentenced separately for each offence, and then imposed the aggregate sentence. There was a debate about when the sentence should commence, because the applicant had been in custody prior to sentence not only referable to the present offences. His Honour commenced the aggregate sentence on 23 March 2020, which was two months prior to the expiry of another sentence being served by the applicant.

Grounds of appeal

1. [41]

   Sequence 5 involved the 66 year old woman who was asked for directions to Thirroul. The applicant pretended not to be able to hear what she said, and when she approached the car she saw that he had his hand down his pants and was attempting to remove his penis. This was one of the offences which his Honour found to be within the midrange. It is difficult, in those circumstances, to understand why the maximum penalty was given as the indicative sentence.

2. [42]

   Of greater significance is the fact that, although his Honour accorded a discount of 25% for the early plea, his Honour did not reduce the indicative sentence by the 25% discount. The Crown properly accepted that it would be open to this Court to find that there was an error in the indicative sentence for this offence. In those circumstances, it cannot be said that there is no error in the aggregate sentence.

3. [43]

   This ground is made out.

4. [44]

   Sequence 2 was an offence contrary to s 66DD(a) of the Crimes Act. That section makes it an offence to carry out a sexual act with or towards a child who is of or above the age of ten years and under the age of 16 years. As previously noted, the victim of this offence was aged 15.

5. [45]

   In the Crown’s written submissions, which were before the sentencing judge, the following appeared under the heading “Aggravating factors”:

6. [46]

   However, in the defence submissions, the solicitor advocate for the applicant, when dealing with s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW), noted that two of the victims were children and aged 11 and 15 years.

7. [47]

   That appears to have led the sentencing judge to say in his ROS:

8. [48]

   It should be noted that the equivalent offence for an adult (s 61KE), which is the offence contained in sequence 1, carries a maximum penalty of 18 months’ imprisonment, whereas the offence involving a child between the ages of ten and 16 years carries a maximum penalty of two years. Both by the limitation of the offence in s 66DD to children under the age of 16 years, and by virtue of the increased penalty when compared with the same offence involving an adult, the issue of vulnerability may be considered to be an element of the offence where the age of the victim is relied upon as the vulnerability.

9. [49]

   The Crown in this Court rightly accepted in the circumstances of the present case that it would be erroneous to aggravate the s 66DD(a) offence in terms of s 21A(2)(l). The Crown also correctly said that this did not amount to a general concession that s 21A(2)(l) can never be applied in sentencing for an offence under s 66DD(a). A child under 16 years may have a vulnerability unrelated to the child’s age, such as one of the other circumstances referred to in paragraph (l).

10. [50]

    The concession made by the solicitor advocate that paragraph (l) was an aggravating factor for sequence 2 should not have been made. That concession appears to have led to the error in that regard made by the sentencing judge.

11. [51]

    This ground is made out.

12. [52]

    The Court took the view, in the light of the two conceded errors identified in grounds 1 and 4, that it should simply move to resentence the applicant without dealing with the remaining grounds of appeal. Nevertheless, the written submissions filed by both parties in relation to those grounds were relevant to the resentencing process, and have been taken into account with other oral submissions made at the hearing of the appeal.

Resentence

1. [53]

   The applicant sought to rely on a report from Dr Melissa Hughes, a clinical neuropsychologist and forensic psychologist. This report was dated 27 April 2021 and was based on an assessment made by Dr Hughes on 13 April 2021, a date well after the applicant was sentenced by Judge Woods.

2. [54]

   The Crown opposed the tender of the report on the basis of what was said in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]-[8], and DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]. The Crown submitted that what was contained in the report went well beyond disclosing the applicant’s progress towards rehabilitation, and constituted new evidence that was available to the applicant at the time he was sentenced by Judge Woods, in the sense that the applicant could have been assessed by Dr Hughes prior to the sentence.

3. [55]

   In Betts, the High Court said:

4. [56]

   The matter was reaffirmed in DL v The Queen where the Court said at [9]:

5. [57]

   It was not contended on behalf of the applicant that the evidence would be admissible other than “on the usual basis”, that is, evidence to be relied upon in the event that the Court was to resentence as a result of error being established. The applicant was correct not to contend that the evidence was “fresh evidence”, in the sense of evidence admissible without establishing error.

6. [58]

   Khoury v R [2011] NSWCCA 118 was a case where it was sought on appeal to lead psychological evidence obtained subsequent to the sentencing of the applicant in that case. It was put forward as “fresh evidence”. In remarks relevant to the present application Simpson J (Davies J and Grove AJ agreeing) said:

7. [59]

   The evidence in Dr Hughes’ report is not fresh evidence, as the term “fresh” was identified by Mason J in Lawless v The Queen (1979) 142 CLR 659. The examination and the report could have been obtained prior to the sentence by Judge Woods. Dr Hughes makes clear the purpose for which the report was sought:

8. [60]

   The applicant had been examined by two psychologists before the sentencing hearing. As best as can be discerned from their reports, those psychologists were not asked to make that investigation. It may be accepted, however, that the report of Ms Cortes related the applicant’s offending to his mental health conditions.

9. [61]

   In my opinion, there are no exceptional circumstances which would justify the admission of this report of Dr Hughes. No satisfactory explanation has been provided for the need for her examination and report. In the light of the material in the reports of Ms Cortes and Ms Van De Velde, particularly the causal connection made by Ms Cortes between his mental health and the offending, it cannot be said that any miscarriage of justice is occasioned by the refusal to receive the report into evidence in this Court.

10. [62]

    When assessing the objective seriousness of all of the offending, three matters are significant. First, the offending was of relatively short duration in each instance. Secondly, the applicant remained within his car at all times. Thirdly, once he was rejected, he drove away. In relation to sequence 6 the fact that the victim was an 11 year old girl is significant. In relation to sequence 7, not only was the victim a 21 year old woman, but the applicant persisted with his attempts to get her into the car and became verbally aggressive towards her.

11. [63]

    Counsel for the applicant submitted that the offending was opportunistic, and that no planning was involved. I do not accept that submission. It is inconsistent with what the applicant told Ms Van De Gelde, that after ingesting two different drugs he became aroused, and because he could not afford to go to a brothel he drove around in the car to try “to pick up females”.

12. [64]

    Like the sentencing judge, I would assess the objective seriousness of sequences 1 and 2 at midrange. I would assess the objective seriousness of sequences 5, 6 and 7 in the low range, noting that offences contrary to s 13 of the Crimes (Domestic and Personal Violence) Act ordinarily involve victims who are or have been involved in pre-existing relationships with the offenders, and where threats of violence form the basis for the offending.

13. [65]

    All of the offending was aggravated by the fact that the applicant was on a s 9 bond, was on a Community Correction Order, and was on parole.

14. [66]

    I have read and had regard to the two victim impact statements. There can be no doubt that all of the victims of the defendant’s behaviour would have been affected by it. This is particularly so with CM, the 11 year old victim of sequence 6, who is to be commended for behaving in such a sensible fashion, by refusing to get into the car and by seeking help in a nearby house. But as the victim impact statement from the victim KR shows, adults can be detrimentally affected as well. I do not consider that the level of harm suffered is aggravated in terms of s 21A(2)(g).

15. [67]

    I accept the unchallenged evidence from the psychologists concerning the applicant’s intellectual disabilities. I accept the evidence from the psychologists that his intellectual disabilities contributed to the offending. However, there can be little doubt that the applicant’s substance use disorder and his self-induced intoxication prior to the offending was a large contributing factor which cannot mitigate the offending.

16. [68]

    I consider that specific deterrence is of some significance. General deterrence should certainly not be minimised, although I accept that this sort of exhibitionism often results from mental illness. In the present case, however, the applicant’s ingestion of drugs was the trigger for both the sexual behaviour and the attempts by intimidation to persuade a child and a young woman to get into his car. Such behaviour needs to be denounced and deterred. The protection of the community is also an important consideration.

17. [69]

    The applicant is entitled to a 25% discount for his early pleas.

18. [70]

    I accept that he is remorseful. In the light of his criminal history and rehabilitation failures in the past, I consider that his prospects of rehabilitation are guarded, and that there is a risk of further offending. I find special circumstances because of the likely time his rehabilitation will take, especially in relation to his substance abuse.

19. [71]

    It is appropriate to impose an aggregate sentence. I indicate the following sentences for the individual offences, taking into account the 25% discount:

20. [72]

    On 13 March 2020 the applicant was sentenced in Wollongong District Court for an offence of aggravated break and enter with intent to commit an indictable offence knowing that a person was present. He received a sentence of two years and ten months commencing 24 September 2018 and concluding 23 July 2021 with a non-parole period of one year and eight months concluding 23 May 2020.

21. [73]

    The applicant was arrested for the present offences on 4 October 2019. Part of the time he was in custody prior to being sentenced by Judge Woods on 4 August 2020 was referable to the break and enter offence as well as to the present offences. The principle of totality requires the sentence for the aggravated break and enter offence to be taken into account when sentencing for the present offences. Account will be taken of that principle by backdating the present sentence.

22. [74]

    I propose that the applicant be sentenced to an aggregate sentence of two years and eight months commencing 23 March 2020 and expiring 22 November 2022 with a non-parole period of one year and eight months expiring 22 November 2021.

Conclusion

1. [75]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the sentence imposed by Judge Woods QC in the District Court on 4 August 2020.

   4. (4)

      In lieu, sentence the appellant to an aggregate sentence of two years and eight months imprisonment commencing 23 March 2020 and expiring 22 November 2022 with a non-parole period of one year and eight months expiring 22 November 2021. The earliest date on which the appellant will become entitled to release on parole is 22 November 2021.

2. [76]

   DHANJI J: I agree with the orders proposed by Davies J and with his Honour’s reasons.

3. [77]

   In relation to the further report I agree the evidence is not admissible as “new or fresh evidence” in the sense discussed in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [10]. The report was sought to be relied on “on the usual basis”. That is, the report was relied on as evidence to be considered only in the event the Court moved to re-sentence. As Davies J points out, the report is not the usual type of such evidence, that is, “evidence of the offender’s progress towards rehabilitation in the period since the sentence hearing”: Betts v The Queen at [11]. The further report adds little to what was known by the sentencing judge. It is doubtful it would have any material impact on the new sentence to be imposed. In these circumstances, I agree the report should not be admitted for the purposes of “revisiting the findings of primary fact”: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [38].