R v Starke (a pseudonym)

1. [1]

   ADAMSON JA: The Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed by Priestley SC DCJ (the sentencing judge) on Starke (a pseudonym) (the respondent) on 15 September 2023 at the Lismore District Court.

2. [2]

   Following a trial by jury over which the sentencing judge presided, the respondent was convicted of the following two offences, for which the maximum penalties, standard non-parole periods (SNPP) and indicative sentences are set out in the table below.

3. [3]

   The aggregate sentence imposed was a sentence of 7 years and 4 months’ imprisonment commencing on 15 July 2021 and expiring on 14 November 2028 with a non-parole period of 4 years and 9 months’ imprisonment. The respondent will first be eligible for parole on 14 April 2026.

4. [4]

   The single ground of appeal is that the sentence is manifestly inadequate. The Crown filed its notice of appeal on 13 October 2023 in compliance with r 3.5(3) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

The sentencing hearing

1. [5]

   The trial commenced before the sentencing judge in the District Court at Lismore on 17 October 2022. The verdicts of guilty were returned on 25 October 2022.

2. [6]

   The matter was mentioned before the sentencing judge on 6 March 2023, at which time the Crown’s submissions, which included the facts which arose from the evidence at trial (with which the respondent’s counsel agreed), were handed up. The matter was stood over to 1 May 2023 at which time the respondent sought an adjournment to permit the sentencing assessment report to be completed (Community Corrections having experienced difficulty in communicating with the respondent for that purpose). On that day the undated case note of Courtney Norton, psychologist (referred to below), was tendered. The matter was stood over for mention on 12 July 2023 at which time it was confirmed that the sentencing assessment report and the Justice Health report had been filed. It was stood over to 18 July 2023 and adjourned by consent to 1 September 2023. Ultimately, the sentence hearing took place in the District Court at Lismore on 1 September 2023, following which his Honour reserved his decision.

3. [7]

   The respondent had served a report of Peter Jenkins, consultant psychologist, dated 5 June 2023 (the Jenkins report). The Crown objected to its tender and set out the bases for its objections in supplementary submissions dated 29 August 2023 which addressed the report in detail.

4. [8]

   At the sentence hearing on 1 September 2023, the respondent’s counsel said with respect to the Jenkins report:

5. [9]

   The Crown maintained its objection. However, after it was clarified that all that the respondent would rely on in the Jenkins report was that the respondent’s cognitive functioning was compromised, which might make him an inappropriate vehicle for general deterrence, and that the report would not be relied upon to allege that his moral culpability was diminished, the Crown accepted the respondent’s position. Apart from this discussion on transcript, no specific rulings were made as to which parts of the Jenkins report would be in evidence.

6. [10]

   The Crown’s evidence on sentence comprised:

   1. (1)

      agreed facts for the purposes of the sentence (arising from the evidence at the trial);

   2. (2)

      the victim impact statement;

   3. (3)

      the respondent’s criminal history (which revealed that he had entered into a bond for 12 months pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act), having been found guilty (but not convicted) of an offence of destroy or damage property on 23 September 2016);

   4. (4)

      the respondent’s custodial history, which indicated that he had been admitted to custody on remand on 2 May 2021, released on bail on 9 August 2022 and returned to custody on 25 October 2022 following his conviction; and that the only infringement while in custody was that he had had a tattoo for which a punishment of 14 days off buy ups was imposed;

   5. (5)

      two sentencing assessment reports of Casey O’Neill, Community Corrections Officer dated 26 April 2023 and 6 July 2023;

   6. (6)

      A Justice Health Report of Dr Jacques Ette dated 6 July 2023;

   7. (7)

      A police statement of Detective Senior Constable Adam Gill dated 14 July 2023 concerning an anonymous complaint against the respondent’s father alleging assault and sexual assault, which was not substantiated when police interviewed the alleged victims; and

   8. (8)

      A document entitled “Structured Case Note” by Courtney Norton, psychologist, at the Clarence Correctional Centre (where the respondent was an inmate from 14 May 2022 until 9 August 2022 and then from 25 October 2022 onwards) which was undated but tendered on 1 May 2023.

7. [11]

   Ms Norton’s case note included the following:

8. [12]

   Ms Norton noted that the respondent had worked in waste management in prison and was, as at the time of her case note, working in a “cleaning role”.

The sentencing judgment

1. [13]

   The reasons for sentence were given and the sentence imposed on 15 September 2023: R v Starke (a pseudonym) [2023] NSWDC 377. The respondent was sentenced on the basis of facts which the parties agreed summarised the evidence at the trial. The sentencing judge set out the facts of the offending in the reasons. These facts were as follows.

2. [14]

   The respondent was the eldest of the seven children who lived with their parents at a remote rural property in New South Wales. The respondent lived in a caravan on the property and his parents and siblings lived in the house. In February 2018, the respondent was aged 19 years and 9 months and the victim, his biological sister, had just turned 18. She was cognitively impaired and gave evidence at the trial with the assistance of an intermediary.

3. [15]

   At 8am on the day after the victim’s 18th birthday, her father was to drive all of the children into the nearby town. When the victim intimated that she was ill and would stay at home, the respondent decided to remain at home. The victim was in the lounge room watching a children’s program (probably SpongeBob SquarePants) when the respondent entered the house, closed and locked the door and went into several rooms in the house and switched the lights off before switching off the main power to the house. The victim became scared and tried to escape. She tripped over. The respondent grabbed her, pulled her hair and shirt and threw her to the ground. She landed on her back, hitting the back of her head on the tiles, as a result of which she became dizzy.

4. [16]

   The respondent positioned his knees either side of her body. He ripped her new shirt and necklace from her neck to shoulder, laughing when her necklace broke in the process. He also ripped her shorts. He pinned her arms above her head in a crossed position, using one hand. When she kept “squealing” and moving, he became angry and pinned her hands under his knees. The victim shouted out for help. He penetrated her vagina with his penis. Until that time, she had been a virgin. When she kept resisting, he punched her “really hard” in the nose, which made it bleed. She felt as if her nose was broken.

5. [17]

   During the intercourse the respondent threatened to slit her throat. After it was over, she ran to her bedroom and cried. Her nose continued to bleed. When the victim had a shower afterwards she saw “gooey” stuff in her vagina, as a result of which she believed that he had ejaculated inside her. She saw that her nose was red and swollen.

6. [18]

   The following day the victim was still bleeding from her vagina, which was still very sore. She had a lump on her head from hitting the ground.

7. [19]

   The injury to the victim’s nose amounted to actual bodily harm which constituted the circumstance of aggravation. The sentencing judge described it as “not a trifling matter.”

8. [20]

   At the time and afterwards (whenever he was at home), the respondent threatened that he would get bikie gangs to rape and kill the victim and that her body would be dumped in the dam on the property.

9. [21]

   The victim burnt all the clothes she had been wearing in a drum in the backyard to avoid being reminded of what had happened. She later found her broken necklace under the couch, near where the offending had taken place.

10. [22]

    Almost exactly three years after the count 1 offending, the victim, who feared that the respondent was about to do the same again, disclosed to her father what had happened. Her father told the respondent, “[y]ou’re not my son and she’s not your sister” and evicted him from the property. In response, the respondent called his family “dog cunts”.

11. [23]

    A few weeks later, the respondent returned to his former home, with his girlfriend as a passenger in his car. For about 5 to 10 minutes, he did burnouts half off the road at a nearby intersection to where the victim was gardening. The respondent and his girlfriend separately yelled out threats to the victim from the car that the girlfriend’s aunt and uncle would come to “fuck her up”. The victim was intimidated and understood these statements as a threat to kill her. The respondent drove away.

12. [24]

    The sentencing judge took into account, in assessing the objective seriousness of count 1 that the victim was cognitively impaired, and that, during intercourse, the respondent threatened to slit her throat and that he would arrange for bikie gangs to rape and murder her and dump her body. His Honour also took into account that the offence had been committed in the victim’s home, where she was entitled to feel safe; that the relationship between the respondent and the victim was one of brother and sister; and that the offence occurred the day after her 18th birthday. The sentencing judge considered that there was a “real maliciousness” in the way the offending had been carried out, including in the damage to the victim’s clothing and jewellery, the locking of the doors and the significant force used by the respondent.

13. [25]

    The sentencing judge was also satisfied beyond reasonable doubt that the respondent had ejaculated inside the victim, who had been a virgin. He also took into account the injuries she suffered when she hit her head, as well as the injury to her genitals which caused her vagina to bleed the following day. The sentencing judge noted that the respondent accepted that the victim had suffered substantial emotional harm and that he had abused her trust (being an older brother who had abused the trust of a younger sister).

14. [26]

    The sentencing judge did not consider there to be any marked degree of premeditation or planning because the locking of the door and the turning off the lights occurred immediately before the sexual intercourse.

15. [27]

    The sentencing judge found at [14]:

16. [28]

    Although the sentencing judge considered the threats made to the victim to be “severe”, his Honour also took into account that the conduct occurred some distance from the victim and that the respondent neither stopped nor got out of the vehicle. The sentencing judge did not regard count 2 as a “particularly serious matter” although accepted that because the victim was the victim of both counts it would have had “a greater impact” on her for that reason.

17. [29]

    Notwithstanding the limited purpose for which the Jenkins report was admitted, the sentencing judge in the reasons for judgment recounted some of the history which the respondent had given to Mr Jenkins. His Honour did, however, note expressly in the reasons that the report was admitted for the limited purpose and said at [27]-[28]:

18. [30]

    When addressing the respondent’s allegations about his father’s conduct, the sentencing judge did not find that the respondent was fabricating his allegations but was not satisfied on the balance of probabilities that what the respondent said about his father’s alleged conduct occurred.

19. [31]

    The sentencing judge noted that the respondent “has a limited criminal history and has incurred only one misconduct charge in custody.” His Honour noted that the respondent continued to deny the sexual offending and was “repulsed by the insinuation he was responsible.” His Honour also noted Ms Norton’s assessment of the respondent’s cognitive functioning and his risk of re-offending. His Honour accepted the statement in Ms Norton’s case note that the respondent was ineligible for custody-based sex offending programs.

20. [32]

    The sentencing judge made a finding of special circumstances on the basis of various factors: the respondent’s low-level intellectual functioning; the circumstance that this is his first time in custody; that he had suffered COVID-19 twice while in custody (or had at least been in custody when COVID-19 was “more of a concern” and made custody “more onerous”); his ineligibility for sex-offender programs while in custody (when he “plainly needs such a program”); and the need for counselling beyond sex offender counselling.

21. [33]

    The sentencing judge set out the purposes of sentencing, as provided for in s 3A of the Act. His Honour addressed these purposes as follows:

Consideration

1. [34]

   The question for this Court on a Crown appeal on the ground of manifest inadequacy is whether the sentence imposed is “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). It is, like manifest excess, a conclusion which does not require patent error to be demonstrated: [6].

2. [35]

   The Crown submitted that, having regard to the maximum penalty of 20 years’ imprisonment; the standard non-parole period of 10 years; and the sentencing judge’s assessment of objective seriousness for count 1 as middle of the range and a “serious example”, the indicative sentence was manifestly inadequate and that this made the aggregate sentence manifestly inadequate. While the Crown accepted that sentencing is not a mathematical exercise and requires the exercise of judicial discretion, it submitted there was such a “disconnect” between these matters, together with the finding that the respondent’s cognitive impairment did not affect his moral culpability, and the sentence imposed that this Court ought infer error. The Crown argued that, while subjective factors are to be taken into account, the sentence imposed must be proportional to the objective gravity of the offence and that the sentence imposed was disproportionately light.

3. [36]

   This Court has held that, although an appeal only lies (with leave) against a sentence that has actually been imposed, rather than a sentence which has merely been indicated in the context of an aggregate sentence, manifest inadequacy of an indicative sentence may explain manifest inadequacy of an aggregate sentence: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], proposition 11 (R A Hulme J, Hoeben CJ at CL and myself agreeing).

4. [37]

   A maximum penalty reflects the seriousness with which Parliament views a particular offence: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. In Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31], Gleeson CJ, Gummow, Hayne and Callinan JJ said:

5. [38]

   In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), held, at [27], that the objective seriousness of an offence was to be determined wholly by reference to the nature of the offending and “without reference to matters personal to a particular offender or class of offenders”. However, the Court went on to say at [32]:

6. [39]

   Thus, in that case, even had Mr Muldrock’s offending been in the high range of objective seriousness, a sentence close to the maximum would not have been warranted because of the significant mitigating factors, including his “mental retardation”. The relationship between objective and subjective matters was confirmed in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [18] where their Honours (Bell, Gageler, Keane, Nettle and Gordon JJ) said:

7. [40]

   The relevant factors, both objective (pertaining to the offence) and subjective (pertaining to the respondent), as well as the purposes of sentencing may, and usually do, pull in different directions. This case is no exception. The purposes of punishing the respondent and denouncing the crime tend towards a significant period of incarceration because of its cruelty, violence and the harm done to the victim, who was very vulnerable. However, the lack of any significant criminal record, the respondent’s youth and that this is his first time in custody pull in the opposite direction. To place a vulnerable man, who is barely adult and who suffers from cognitive impairment, in an adult gaol can hardly be regarded as conducive to rehabilitation and may have the opposite effect of brutalising him (if he is not in protection) or isolating and de-socialising him (if he is in protection) and thereby making him more of a danger to potential victims on release.

8. [41]

   The purpose of preventing further offending by promoting rehabilitation would appear to be furthered by minimising the respondent’s time in custody where it would appear unlikely that any rehabilitation can be effected.

9. [42]

   It is apparent that the evidence of the respondent’s cognitive impairment was neither comprehensive nor detailed. However, it was noted by Ms Norton and accepted by the Crown that his cognitive impairment was significant. While the sentencing judge found that the respondent’s moral culpability was not diminished as a consequence of his impairment, this finding would appear to be somewhat anomalous and may simply reflect the respondent’s assurance to his Honour that the Jenkins report would not be used as a basis to contend that moral culpability was reduced.

10. [43]

    It is also of significance that the sentencing judge was also the trial judge. The respondent’s counsel confirmed in this Court that the respondent had given evidence at the trial. His Honour noted at [28] (extracted above) that the respondent at trial (implicitly when giving evidence) appeared to suffer from low intellectual functioning, had engaged in substance abuse and was a person of low mood who suffered from a real sense of low self-esteem. Thus, his Honour was also in a position to making findings on the basis of what had occurred at the trial.

11. [44]

    The weight to be given to particular factors is pre-eminently a matter for the sentencing judge. It was open to his Honour to consider that a sentence of the length of the aggregate sentence imposed was an appropriate exercise of the sentencing discretion and would be more effective to achieve the purposes of sentencing (and in particular rehabilitation and prevention of further offending) than a longer total term or a longer non-parole period. The present case serves to illustrate that sentencing is not a mathematical exercise and that, while maximum penalties and standard non-parole periods are aptly described as “yardsticks”, they are not determinative. All relevant factors, both objective and subjective, need to be taken into account.

12. [45]

    For these reasons, I am not satisfied that the aggregate sentence imposed was either unreasonable or manifestly inadequate. In these circumstances it is not necessary to consider the residual discretion.

Proposed orders

1. [46]

   For the reasons given above, I propose the following order:

   1. (1)

      Dismiss the appeal.

2. [47]

   LONERGAN J: I agree with Adamson JA.

3. [48]

   SWEENEY J: I agree with Adamson JA.