R v Omar

1. [1]

   SIMPSON J: I agree with Bellew J.

2. [2]

   ROTHMAN J: I agree with Bellew J. The sentence imposed, while lenient, is within range for the peculiar circumstances of the respondent.

3. [3]

   The mere fact, if it were the fact, that this Court would have imposed a more severe sentence is insufficient to warrant interference in the exercise of discretion and, in this case, even if it were sufficient, the Crown appeal does not raise an issue of the kind that satisfies the burden imposed upon it of establishing that the residual discretion not to vary the sentence should not be exercised: CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 317 ALR 308 at [6].

4. [4]

   BELLEW J: On 14 August 2013 Michael Omar (“the respondent”) pleaded guilty before the Local Court to the following:

5. [5]

   In addition, the respondent pleaded guilty to breaching a bond which had been imposed upon him pursuant to s. 12 of the Crimes (Sentencing Procedure) Act 1999. The offending in sequences 1, 3 and 4 occurred on 17 July 2004. The offending in sequence 2 occurred on 13 September 2006. It was not until 10 December 2012 that the respondent was arrested and charged. The identification of the respondent as the offender came about through DNA matching.

6. [6]

   On 11 September 2014 the respondent was sentenced by his Honour Judge Jeffreys in the District Court as follows:

7. [7]

   In respect of the breach of bond, the respondent was sentenced to imprisonment for 12 months with a non-parole period of 4 months, to date from 11 September 2014.

8. [8]

   The overall sentence imposed was 6 years and 10 months with a non-parole period of 3 years and 11 months. The respondent will be eligible for parole on 10 August 2018.

9. [9]

   By notice dated 2 October 2014 the Director of Public Prosecutions appealed to this Court, pursuant to s. 5D of the Criminal Appeal Act 1912, against the sentences imposed on the respondent, on the grounds of manifest inadequacy.

THE FACTS

1. [10]

   The sentencing judge summarised the facts as follows (commencing at ROS 3):

THE FINDINGS OF THE SENTENCING JUDGE

1. [11]

   The sentencing judge found (at ROS 8) that each of the offences for which the respondent was to be sentenced was objectively serious and that no sentence other than a term of imprisonment would be appropriate. Having referred to various authorities, his Honour turned to an assessment of the objective criminality of the offending and said (commencing at ROS 9):

2. [12]

   His Honour repeated his finding that the entirety of the offending was opportunistic at ROS 15.

THE RESPONDENT’S SUBJECTIVE CASE

1. [13]

   At the time of sentence the respondent was 33 years of age. He was born in Lebanon and spent the first 10 years of his life in Lebanon and Syria before migrating to Australia with his family.

2. [14]

   His Honour made lengthy reference (commencing at ROS 12) to a report of Professor Woods which was tendered in the respondent’s case on sentence and to which I have made further reference below when considering the individual grounds of appeal. His Honour found (at ROS 13) that at the time of the respective offending the respondent was using illicit drugs on a daily basis. However, he noted (at ROS 13) that at the conclusion of 2006 the respondent formed a new relationship and that with his partner’s assistance had now reached the point where he was drug free. The respondent’s partner has since given birth to three children. His Honour also found (at ROS 14) that the respondent had greatly assisted his partner with the care of her son from a previous relationship who has a number of special needs for which he receives psychological treatment. His Honour also found that after a period of estrangement, the respondent had re-established a relationship with his family who were supportive of him (at ROS 14).

3. [15]

   His Honour concluded (at ROS 14):

4. [16]

   His Honour then turned to the delay which had been occasioned in the matter and noted (at ROS 15) that DNA matching had brought the offences to light in 2011. His Honour referred to a number of authorities on the question of delay before concluding (at ROS 17):

5. [17]

   His Honour found (at ROS 17) that the respondent was deeply contrite. He also found (at ROS 20) that the son of the respondent’s partner would be considerably affected by the fact that the respondent was incarcerated. His Honour did not regard this as exceptional but treated it as a matter that he needed “to take into account in the factual matrix”.

6. [18]

   His Honour then proceeded to impose the sentences previously set out.

PRINCIPLES APPLICABLE TO A CROWN APPEAL AGAINST INADEQUACY

1. [19]

   The right of appeal by the Crown against a sentence which is said to be manifestly inadequate is an exceptional one. It is a right which must be exercised with restraint, so as to allow the Court to lay down sentencing principles: Griffiths v R [1977] HCA 44; (1977) 137 CLR 293; Everett v R [1994] HCA 49; (1994) 181 CLR 295; R v MD and ors [2005] NSWCCA 342; (2005) 156 A Crim R 372. In Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 French CJ, Crennan and Kiefel JJ put the matter in this way (at [1] and [36], citations omitted):

The evidence before the sentencing judge

1. [20]

   Exhibit 2 before the sentencing judge was a report of Professor Stephen Woods, Psychologist, dated 13 June 2013. That report was prepared following an examination and assessment conducted by Professor Woods on 30 April 2013.

2. [21]

   Professor Woods obtained a history from the respondent that he had a vague and incomplete memory of the offending which is the subject of sequences 1, 3 and 4. The respondent explained that he was living on the streets at that time, often staying with a group of fellow drug users in premises at Merrylands. He reported that during this period he sometimes spent the night at a park near where the sexual assaults were committed, in order to be close to his family home. The respondent told Professor Woods that at this time of his life he was drug affected every day.

3. [22]

   The respondent told Professor Woods that he had absolutely no memory of committing the armed robbery offence which is the subject of sequence 2 but that he accepted his guilt. Again, he cited his then drug dependence as the reason for his lack of memory.

4. [23]

   The respondent gave a history to Professor Woods of having commenced consuming alcohol on a regular basis at about 16 years of age. He said that he first experimented with cannabis at the age of 15 and that in his late teenage years his use of cannabis increased. At age 18-19 his drug use extended to cocaine. By the age of 21-22 he was addicted to crystal methamphetamine. He reported that he had been able to completely relinquish his drug habit with the support of his current partner.

5. [24]

   At Part 4:2 of his report, under the heading “Diagnosis”, Professor Woods reported in the following terms:

6. [25]

   Professor Woods went on to state:

7. [26]

   Professor Woods gave evidence in the sentence proceedings on 15 November 2013. He expressed the view (T3 L13-17) that the respondent had some symptoms of Post Traumatic Stress Disorder although not to the extent required to support a formal diagnosis. He said (commencing at T3 L19) that in his opinion the respondent’s symptoms of Post Traumatic Stress Disorder were partly the result of his experiences as a child in war torn Lebanon. Professor Woods went on to state (T3 L42 and following):

8. [27]

   The respondent also gave evidence. He confirmed (commencing at T10 L48) that he was currently drug free and had been for a number of years.

The findings of the sentencing judge

1. [28]

   At ROS 19, having referred to the evidence of Professor Woods, his Honour said:

2. [29]

   His Honour then cited the judgment of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 before stating (at ROS 19):

Submissions of the Crown

1. [30]

   The Crown submitted that on a proper analysis, the effect of Professor Woods’ evidence was that any mental condition from which the respondent suffered was secondary to his voluntary use of illicit drugs. It was submitted that in these circumstances it was not open to the sentencing judge to find that the respondent had “mental problems”.

2. [31]

   In advancing this submission the Crown placed significant reliance upon the judgment of Wood CJ at CL in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [273] and following where his Honour said:

3. [32]

   The Crown further submitted that the sentencing judge’s error in finding that the respondent had “mental problems” was, in effect, compounded by the further error of using that finding in a way which was contrary to the principles set out by Wood CJ at CL in Henry, and which afforded leniency to the respondent on the basis of his prior illicit drug use. In oral argument before this Court, the Crown submitted that even if the primary error relied upon in support of ground 1 was not made out, his Honour’s use of the finding that he made was nevertheless erroneous and supported the Crown’s position in respect of grounds 2, 3 and 4.

Submissions of the Respondent

1. [33]

   Senior counsel for the respondent submitted that it had been open to his Honour to accept the evidence of Professor Woods, and that such evidence supported his conclusion as to the respondent’s mental state.

2. [34]

   It was further submitted that the Crown’s position in respect of ground 1 reflected a misunderstanding of the judgment of Wood CJ at CL in Henry. It was submitted that his Honour’s observations in that case were authority for the proposition that (inter alia) those who commit offences to feed a drug addiction cannot rely upon such addiction as a mitigating factor on sentence. Senior counsel submitted that no such issue arose in the present case. It was submitted that nothing in his Honour’s judgment indicated that he had used the evidence of the respondent’s prior drug use as a mitigating factor in any event.

Consideration

1. [35]

   In my view, there are a number of difficulties arising from the way in which the Crown articulated its position in support of this ground.

2. [36]

   Firstly, the terms of ground 1 sought to challenge a factual finding by the sentencing judge that the respondent had “mental problems”. The Crown’s submissions tended to conflate this factual finding with the use to which that finding was ultimately put by the sentencing judge. The two matters were completely separate. Only the first properly related to ground 1.

3. [37]

   Secondly, fundamental to the Crown’s submission was the proposition that if the respondent did suffer from mental problems, such problems were secondary to his illicit drug use. That submission ignores the evidence of Professor Woods. As set out at [24] above Professor Woods diagnosed four separate forms of mental illness. The first (and by inference the second) were in remission. The third and fourth were not. Even more significantly, Professor Woods’ opinion was that the third and fourth conditions were not, as the Crown submitted, secondary to the use of illicit drugs at all. Rather, they were attributable to a variety of other factors. Professor Woods’ opinions in these respects were largely unchallenged. The sentencing judge was entitled to, and did, accept them. They formed the basis of his finding that the respondent had mental problems. The Crown failed to demonstrate any error at all on the part of the sentencing judge in reaching that finding.

4. [38]

   Thirdly, the Crown’s submission that the resolution of this ground invited application of the principles articulated by Wood CJ at CL in Henry was based upon the erroneous proposition that the respondent’s mental state was secondary to his drug taking. It was not put to the sentencing judge that the respondent was entitled to rely upon his drug addiction as a mitigating factor in the sense to which Wood CJ at CL referred. The sentencing judge made no such finding. The principles articulated by Wood CJ at CL in Henry are simply not engaged.

5. [39]

   For all of these reasons, ground 1 is not made out.

The findings of the sentencing judge

1. [40]

   The findings of the sentencing judge which are relevant to these grounds are set out in [28] and [29] above.

Submissions of the Crown

1. [41]

   The Crown submitted that it was not open to the sentencing judge to conclude that the respondent’s mental problems moderated the need for general or specific deterrence. Again, it was submitted that Professor Woods’ evidence was to the effect that the entirety of the respondent’s mental health issues were secondary to his drug taking. It was further submitted that any mental health issues had resolved, and that the only remaining issue was the trauma experienced by the respondent as a consequence of his own offending behaviour.

2. [42]

   It was further submitted that there was no evidence before the sentencing judge that the respondent suffered from ongoing mental problems which would make more difficult for him to serve a custodial sentence.

3. [43]

   Finally, the Crown submitted that in these circumstances his Honour “must have found” that there was some causal connection between the respondent’s mental illness and his offending. Implicit in that submission, although not specifically put, was the proposition that such a finding was an error.

Submissions of the respondent

1. [44]

   Senior counsel for the respondent submitted that the errors for which the Crown contended were not made out. It was submitted, in particular, that it was evident from the reference to De La Rosa that his Honour was aware of the relevant principles governing the relevance of mental illness on sentence, and that he applied them correctly.

2. [45]

   It was further submitted that his Honour’s findings as to the respondent’s mental illness were supported by the oral evidence of Professor Woods set out at [26] above, who drew a causal connection between such mental illness and the offending.

Consideration

1. [46]

   Once again there are a number of difficulties with the way in which the Crown put its position in support of these grounds.

2. [47]

   Firstly, for the reasons I have already stated, the proposition that the respondent’s mental illness was secondary to his drug taking, as well as the proposition that the respondent’s mental health issues had resolved, must be rejected. Both ignore the unchallenged evidence of Professor Woods which the sentencing judge accepted.

3. [48]

   Secondly, when dealing with this issue the sentencing judge made specific reference to the decision of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177]:

4. [49]

   Having referred to these passages, the sentencing judge found (at ROS 19) that the respondent’s mental illness warranted the moderation of general and specific deterrence. Although his Honour did not specifically say so, it may be inferred that he found a causal connection between the respondent’s mental state and his offending. Those findings do not reflect error. They were supported by the evidence of Professor Woods and they reflected a correct application of the principles set out by McClellan CJ at CL in De La Rosa. Having found that the respondent suffered from mental problems, it was open to his Honour to find that such problems would have some impact on any custodial sentence which was imposed.

5. [50]

   Further, and to the extent that the Crown’s submission might have suggested otherwise, an offender’s mental state may remain relevant to sentence even in the absence of some causal link between such mental state and the relevant offending: Iskandar v R [2013] NSWCCA 235 at [30] per the Court (Beazley JA, R A Hulme and Bellew JJ).

6. [51]

   Finally, in light of the matters discussed in respect of ground 5 below concerning the degree of the respondent’s rehabilitation, it was open to his Honour to find that considerations of personal deterrence were similarly moderated.

7. [52]

   For all of these reasons, grounds 2, 3 and 4 are not made out.

Submissions of the Crown

1. [53]

   The Crown submitted that the sentences imposed at first instance reflected little weight having been given to general deterrence.

2. [54]

   In terms of the offending in sequences 1, 3 and 4, it was submitted that the respondent’s behaviour was consistent with someone who had “preyed” on the victim. It was submitted that the objective seriousness of the offending was reflected in the respondent:

3. [55]

   The Crown submitted that the robbery offence in sequence 2 involved a vicious attack which targeted the victim’s head with a knife. The Crown also submitted, in respect of the overall sentence, that partial accumulation was insufficient to properly reflect the totality of the respondent’s offending.

4. [56]

   Finally, the Crown submitted that the sentencing judge had afforded excessive weight to the issue of delay. It was submitted that the delay between the offending (in 2004 and 2006) and the respondent being charged (in 2011) was a consequence of the respondent “keeping quiet” about what he had done. It was submitted that in these circumstances it was not open to rely upon that delay as a mitigating factor.

Submissions of the respondent

1. [57]

   Senior counsel for the respondent acknowledged that the offending was objectively serious. However, he submitted that in all of the circumstances the Crown had not established that the sentences imposed were unreasonable or plainly unjust. In advancing that submission, senior counsel relied upon a number of factors.

2. [58]

   Firstly, in terms of general deterrence, senior counsel repeated the submission (which I have previously accepted in my consideration of grounds 2, 3 and 4) that it was open to the sentencing judge to conclude that considerations of general deterrence should be moderated in view of the respondent’s mental illness.

3. [59]

   Secondly, it was submitted that specific deterrence was a matter of limited relevance, given the degree of the respondent’s rehabilitation.

4. [60]

   Thirdly, it was submitted that the relevance of delay on sentence necessarily differed according to the circumstances of a particular case. It was submitted that in the present case, the respondent had undergone total rehabilitation during the period of the delay and that this was clearly a powerful mitigating factor.

5. [61]

   Fourthly, reliance was placed on the finding of the sentencing judge that none of the offending was planned and was in fact opportunistic.

6. [62]

   Finally, it was submitted that the present case called for the application of a significant degree of understanding and flexibility in determining sentence, particularly in view of the respondent’s mental illness and his achieved level of rehabilitation.

Consideration

1. [63]

   There is force in the Crown’s submission as to the objective seriousness of the respondent’s offending. The offending in sequences 1, 3 and 4 involved the commission of separate and distinct acts of forced sexual intercourse, accompanied by degrading commands being made of the victim with which she was forced to comply out of fear for her safety. Significantly, the victim suffered physical injury as a consequence of the offending. However I am not able to accept the Crown’s submission in committing these offences the respondent had “preyed” on the victim. Such a submission suggests some degree of pre-meditation. That suggestion runs completely contrary to his Honour’s uncontested finding that the entirety of the offending was opportunistic.

2. [64]

   The robbery offence in sequence 2 was also serious. It involved a completely random and unprovoked attack on a shopkeeper who suffered serious injury as the result of an attack with a knife.

3. [65]

   I am unable to accept the Crown’s submission that the sentences imposed reflect insufficient weight being given to considerations of general deterrence. For the reasons previously stated, there was no error in his Honour’s conclusions regarding the respondent’s mental illness. That mental illness lessened the significance of general deterrence on sentence. It should also be pointed out that the sentencing judge did not find that general deterrence was of no weight at all. Rather, he concluded that the need for it was moderated in the circumstances of this case.

4. [66]

   One of the most significant factors in terms of determining sentence in the present case was the rehabilitation undertaken by the respondent during the period between the offending and his arrest. His uncontested evidence was that at the time of sentence he had been drug free for 5 years. He was in a stable relationship with his partner who, when giving evidence before the sentencing judge, expressed her unequivocal support for the respondent, variously describing him as an “amazing individual” and a “good man”.

5. [67]

   His Honour effectively found (at ROS 14) that the respondent’s rehabilitation was total and complete. Before this Court the Crown did not cavil with that proposition. That finding necessarily meant that considerations of specific deterrence were of less significance than might otherwise have been the case. His Honour also concluded (at ROS 17) that the respondent was deeply contrite, a sentiment that the respondent himself expressed when giving evidence.

6. [68]

   In advancing the submission that the sentencing judge had given excessive weight to the delay which had occurred between the offending and the respondent being charged, the Crown relied upon the decision of this Court in R v Kay [2004] NSWCCA 130. In that case, the relevant offending had been detected as a result of DNA matching some 13 months after the offending, a substantially shorter period than that in the present case. McColl JA, with whom Hidden and Levine JJ agreed, made reference (at [23]-[25]) to the decision of this Court in R v Todd [1982] 2 NSWLR 517, and to the decision of the High Court in Mill v R [1998] HCA 70; (1988) 166 CLR 59. Both cases considered the effect of delay on sentence where such delay was caused by the operation of the criminal justice system.

7. [69]

   In Todd Street CJ said (at 519):

8. [70]

   The decision in Todd was referred to by the plurality (Wilson, Deane, Dawson, Toohey and Gaudron JJ) in Mill v R (at 66):

9. [71]

   In distinguishing those decisions, McColl JA said (at [33]):

10. [72]

    In the present case, the respondent did not submit to the sentencing judge that the delay was attributable to the criminal justice system and that it should be taken into account because it had caused him stress and anxiety. Accordingly, as was the case in Kay, the circumstances of the present case did not attract application of what McColl JA referred to as the “Todd principle”.

11. [73]

    Whether delay is relevant, and if so on what basis and to what extent, will depend on the circumstances. In my view, the submission made by senior counsel that the respondent’s complete rehabilitation was a powerful mitigating factor should be accepted. In particular, it should be emphasised that the respondent reported to Professor Woods that he had an incomplete memory of the sexual offending, and no memory at all of the robbery. Those propositions were not challenged when the respondent was cross-examined in the sentence proceedings. Accordingly, this was not a case in which the respondent, in the knowledge that he had offended, had deliberately remained silent, or had deliberately “hidden” himself from the authorities, between the time of his offending and the time of his arrest. Those circumstances are clearly distinguishable from those considered in Kay.

12. [74]

    In order to succeed on the present appeal, the Crown must establish that they were unreasonable or plainly unjust: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321. The sentences should, in my view, be regarded as lenient. At the same time however, they reflect considerations which were specific to the present case.

13. [75]

    In particular, the sentences reflect the sentencing judge having reached a particular conclusion regarding the respondent’s mental state, and its effect upon the need for general deterrence. They also reflect his Honour having properly given significant weight to the respondent’s complete rehabilitation, and its effect upon the need for personal deterrence.

14. [76]

    In all of these circumstances, I am not persuaded that the sentences are unreasonable or plainly unjust.

ORDERS

1. [77]

   I propose the following order:

   1. (1)

      The Crown appeal is dismissed.