Sharma v R

1. [1]

   BEECH-JONES CJ at CL: I have read the judgment of Bellew J. I agree with his Honour but wish to add the following.

2. [2]

   Counsel for the applicant contended that, in considering the contention that the sentence imposed was manifestly excessive, the Court should ascertain what the aggregate sentence would have been had the indicative sentences not been discounted on account of his plea of guilty and compare that to other cases. He sought to rely on the following passage from the judgment of Brereton JA in Chartres-Abbott v R: [1]

3. [3]

   In addressing this passage, I will confine myself to its potential application to this case and not address the broader question of whether there is ever any utility in comparing a discounted aggregate sentence imposed in one case with an undiscounted aggregate sentence imposed in another.

4. [4]

   Prior to the introduction of aggregate sentences, sentencing was undertaken in accordance with the strictures stated in Pearce v The Queen [2] (“Pearce”), namely, “fix[ing] an appropriate sentence for each offence and then consider[ing] questions of cumulation or concurrence, as well, of course, as questions of totality”. [3] As explained by R A Hulme J in JM v R, [4] the provision enabling the imposition of aggregate sentences, s 53A, was introduced in order to ameliorate the difficulties of applying Pearce in sentencing for multiple offences. The provision “offers the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a ‘cascading or “stairway” sentencing structure’ when the principle of totality requires some accumulation of sentences” although it is still “necessary in assessing the indicative sentences to have regard to the requirements of Pearce”.

5. [5]

   Hence the process of aggregation, that is, the step in the sentencing process of moving from the indicative sentences to fixing an aggregate sentence, involves an application of the requirement in Pearce to “consider questions of cumulation or concurrence, as well … as … totality” without having to fix start and end dates for individual sentences. At that point, considerations of parity with sentences imposed on co-offenders still have a role to play because a differential application of the totality principle to two offenders who committed multiple offences can infringe the parity principle even if only some of the offences were common offences. [5]

6. [6]

   However, for the purposes of addressing a claim that a sentence is manifestly excessive in a case such as this, I struggle to see the relevance of comparing the aggregate sentence imposed with the aggregate sentence imposed in another case, especially where each aggregate sentence included different offences. In this case, the aggregate sentence is imposed for six sexual offences involving three different victims. At least so far as this case is concerned, it is difficult to envisage that there is much of a pool of aggregate sentences for six sexual offences of the kind involved here concerning three different victims. Even if there were such a pool of aggregate sentences, a comparison of aggregate sentences, as opposed to the indicative sentences, would at most only reveal how the totality principle was applied in another case. The utility of ascertaining that in a claim of manifest excess is not apparent. It is one thing to analyse comparable cases to ascertain a range of sentences for particular offences as part of the process of determining whether a sentence is manifestly excessive. However, it is quite another to attempt to ascertain a range of notional discounts applied on account of the application of the totality principle for that purpose. For my part, at least in a case of this kind, I do not see how that would assist.

7. [7]

   I agree with the orders proposed by Bellew J.

8. [8]

   ADAMSON J: I agree with the reasons of Bellew J and with the orders proposed by his Honour and with the additional remarks of Beech-Jones CJ at CL.

9. [9]

   BELLEW J: Maanau Sharma (the applicant) pleaded guilty in the District Court to the following offences, in respect of which the sentencing Judge gave the indicative sentences which are set out:

10. [10]

    In respect of sequence 3/91, the applicant asked the sentencing Judge to take into account a further offence of having sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). Two further counts of possessing a prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) were included in a Certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

11. [11]

    The sentencing Judge imposed an aggregate sentence of 11 years imprisonment with a non-parole period of 7 years. In respect of each of the matters contained in the s 166 Certificate, her Honour recorded a conviction but did not impose any further penalty.

12. [12]

    The applicant now seeks leave to appeal against that sentence on the single ground of appeal set out below. It should be noted that in advancing that ground of appeal, counsel for the applicant before this Court took no issue with any of the findings of the sentencing Judge.

THE FACTS OF THE OFFENDING

1. [13]

   Agreed facts were tendered to the sentencing Judge [6] which may be summarised as follows.

Background

1. [14]

   In late 2017, the applicant met the first victim (KB) via the dating application “Tinder”. They began communicating with each other and a friendship developed between them.

2. [15]

   In December 2018, KB was diagnosed with a chronic pain condition known as Trigenminal Neuralgia, as a consequence of which she was prescribed analgesic medication. She did not experience any side effects whilst taking that medication, but was warned that it could cause drowsiness and was not to be taken with alcohol.

3. [16]

   In March 2019, KB told the applicant that she was experiencing pain in her arm and neck. The applicant offered to give her a massage, telling her that he was qualified to do so. KB agreed and attended the applicant's premises. She became comfortable with the applicant in the course of the massage, and engaged in consensual sexual intercourse with him. The applicant then drove KB home, in the course of which he made reference to the fact that he could obtain strong medication to assist her in dealing with her pain. There were two further occasions in April and May 2019 on which KB engaged in consensual sexual intercourse with the applicant.

4. [17]

   During the week of 20 May 2019 the applicant repeatedly messaged KB, attempting to meet up with her. KB initially declined, but ultimately agreed to stay at the applicant’s premises overnight on 24 May 2019. Sometime after 7:30pm that day the applicant sent KB a message telling her that he had painkillers for her to try.

Sequence 8/91 – Causing KB to take an intoxicating substance with intent to enable the commission of an indictable offence, namely sexual intercourse without consent

1. [18]

   The applicant collected KB from her premises at 9:33pm on 24 May 2019. In the course of returning to the applicant's premises, KB mentioned that she was experiencing pain in her face. The applicant responded by telling her that:

2. [19]

   The applicant then opened the centre console of his vehicle, pulled out a white tablet box, and asked KB how many tablets she wanted. When KB asked what was in the tablets, the applicant told her that they had “Endone or something else” in them, and said that he would send a message to a friend later in the evening to obtain more precise information.

3. [20]

   The applicant gave KB 2 of the tablets. Acting on what he had told her about their ingredients, KB took them. The applicant had in fact given KB Zolpidem (trade name Ambien), a non-benzodiazepine sedative and hypnotic which rapidly induces sleep.

4. [21]

   When they arrived at the applicant’s premises, KB sat down in the lounge room to watch television, whilst the applicant prepared a drink in the kitchen. By this time it was about 10:00pm. KB's memory began to fade due to the effects of the Zolpidem and by 10:30pm, KB had lost consciousness entirely.

Sequence 4/91 – Intentionally recording intimate images of KB without consent

1. [22]

   Between 10:31pm on 24 May 2019 and 12:02am on 25 May 2019, the applicant took a series of photographs and videos of KB when she was unconscious on the couch. These included:

Sequences 2/91 and 3/91 – Sexual intercourse with KB without consent

1. [23]

   During the evening of 24 May 2019 and the early hours of the morning of 25 May 2019, the applicant engaged in penile/vaginal and penile/anal intercourse with KB whilst she was unconscious or semi-unconscious and thus incapable of consenting, in the knowledge that she was so incapable. KB was able to recall the applicant removing his penis from her vagina and inserting it into her anus, at which point she said:

2. [24]

   The applicant responded with words to the effect:

3. [25]

   The next thing KB could recall was being shaken awake by the applicant at 6:30am on 25 May whilst lying on his bed. She was completely clothed at the time with her clothing properly positioned. The applicant drove her home.

4. [26]

   The Form 1 attached to sequence 3/91 detailed that the applicant had also engaged in penile/oral intercourse with KB whilst she was unconscious. As he was thrusting his erect penis in and out of KB’s mouth, he said to her:

Events following the offending against KB

1. [27]

   During 25 May 2019, KB began having flashbacks of what had occurred at the applicant's premises. As a consequence of these flashbacks, she conducted a Google search of the term “rape if they are unconscious” and found a picture that said:

2. [28]

   KB sent a copy of this picture to the applicant, following which there was an exchange of messages between them:

3. [29]

   KB had no further communication with the applicant following this exchange.

4. [30]

   KB disclosed her concerns to her sister and a friend and then attended Liverpool Hospital where she was examined. Her urine sample was found to contain Zolpidem metabolites. Bearing in mind what the applicant later told police when arrested (as set out below) nothing detected in the sample was consistent with the presence of Valium. On the morning of 27 May, KB reported the incident to the police.

The applicant’s arrest

1. [31]

   Police arrested the applicant on 28 May 2019. The applicant spoke with police en route to the police station, in the course of which he said (inter alia) that:

2. [32]

   After arriving at the police station, the applicant participated in a formal interview during which he told police that:

Further investigations

1. [33]

   Following the applicant's arrest, his car and home were searched. In the course of that search, police located 5.6g of Testosterone located in a vile marked “Sustanon 250” and two tablets of Oxymetholone. The applicant's possession of those substances constituted the basis of the two offences in the Certificate issued pursuant to s 166.

2. [34]

   Police also seized a number of electronic storage devices. A Cellebrite download of the applicant's phone established a browsing history dating back to 2018 which included:

Sequence 3/53 – Intentionally recording intimate images of MH without consent

1. [35]

   When examining the applicant's phone following his arrest, police recovered videos and photographs of a second victim, MH, next door to whom the applicant had lived between 2016 and 2017. Those images had been taken by the applicant through the back door and window of her home on multiple dates between February and November 2017. The images variously captured MH in a state of undress, wearing only underwear, naked after having a shower, and masturbating on her lounge. A total of 16 photographs and 36 videos were taken of MH after 25 August 2017. 5 photographs and 8 videos amounted to intimate images. MH was unaware of the photographs and videos which had been taken, and did not consent to the applicant doing so.

Sequence 4/53 – Attempting to intentionally record intimate images of JM without consent

1. [36]

   The applicant was employed by a major bank as a customer lending/service specialist, and on 6 September 2018 attended a training session conducted by a further victim to whom I shall refer as JM. The applicant was sitting to the immediate left of JM during the training session, in the course of which he surreptitiously recorded two videos of her underneath the table. In doing so, he pointed the camera towards JM’s legs and crotch. JM was unaware of the videos which were taken, and did not consent to the applicant doing so.

Sequence 8/91

1. [37]

   The sentencing Judge found that [7] :

2. [38]

   Her Honour concluded that the objective seriousness of the offending fell above the mid-range, albeit perhaps only slightly above.

Sequences 2/91 and 3/91

1. [39]

   The sentencing Judge found that: [8]

2. [40]

   Her Honour also concluded that the offending in the Form 1 meant that a moderately heavier sentence was to be imposed in respect of the offending in sequence 3/91 in order to reflect the increased weight to be attributed to personal deterrence for that offending.

3. [41]

   Her Honour found that the objective seriousness of the offending in each case fell at the mid-range.

4. [42]

   I interpolate that although counsel for the applicant before this Court took no issue with any of the findings of the sentencing judge, her Honour's finding at [33](ii) above tends against observations previously made by this Court that forms of forced sexual intercourse should not be graded or ranked in a hierarchy for the purposes of determining issues of objective of seriousness. [9]

Sequence 4/91

1. [43]

   The sentencing Judge found that: [10]

2. [44]

   Her Honour concluded that the objective seriousness of the offending fell above the mid-range.

Sequence 3/53

1. [45]

   The sentencing Judge found that: [11]

2. [46]

   Her Honour concluded that the objective seriousness of the offending fell above the mid-range.

3. [47]

   The sentencing Judge found that: [12]

4. [48]

   Her Honour concluded that the objective seriousness of the offending fell below the mid-range.

5. [49]

   In terms of the offending overall, her Honour concluded that general deterrence was a significant consideration, that the applicant's offending was to be denounced, and that it was necessary for any sentence to recognise the harm done by the applicant to all three of his victims. [13]

THE APPLICANT'S SUBJECTIVE CASE

1. [50]

   It was common ground that the applicant had pleaded guilty to all of the offences at the first available opportunity and was entitled to a discount of 25%. [14] Her Honour accepted that the applicant was entitled to a “measure of leniency” on account of the fact that he had no prior convictions. [15]

2. [51]

   Other non-contentious aspects of the applicant's subjective case were summarised by the sentencing Judge as follows: [16]

3. [52]

   Her Honour found that the applicant was genuinely remorseful, and took that fact into account in mitigation. [17] Her Honour also found that the applicant had “reasonably good prospects of rehabilitation”, although she considered that there was more work to be done” in that regard. [18]

4. [53]

   Tendered in that the applicant's case on sentence was a report of Dr Sidorov, Consultant Forensic Psychiatrist. In addressing the applicant's psychiatric history, Dr Sidorov recorded [19] that the applicant had reported that he had been diagnosed with Bipolar Affective Disorder by a psychiatrist in Bathurst Correctional Centre 2 to 3 months prior to Dr Sidorov’s examination on 19 April 2020. Dr Sidorov went on to express the following opinion: [20]

5. [54]

   Having expressed the further opinion [21] that the applicant also met the criteria for a substance use disorder (anabolic steroids and cocaine), Dr Sidorov went on to say: [22]

6. [55]

   When the matter first came before the Court for sentence, her Honour raised an issue concerning Dr Sidorov’s diagnoses in the course of the applicant giving evidence. This caused the sentence proceedings to be adjourned for the purposes of giving those representing the applicant the opportunity to consider the issue raised by her Honour and obtain further evidence. On the resumption of the proceedings some months later, the applicant tendered a report of Thea Gumbert, Psychologist.

7. [56]

   As to the applicant's Bipolar disorder, Ms Gumbert recorded the following history: [23]

8. [57]

   Ms Gumbert went on to express the following opinion: [24]

9. [58]

   Ms Gumbert also expressed the opinion [25] that the applicant met the DSM-5 criteria for diagnosis of a voyeuristic disorder, and concurred with Dr Sidorov’s diagnosis of a substance use disorder. [26] Ms Gumbert also “acknowledged” what she described as Dr Sidorov’s “potentially additional” diagnosis of a substance induced mood disorder. [27]

10. [59]

    Having reviewed the entirety of the expert evidence in detail [28] the sentencing Judge reached the following conclusion in relation to the applicant’s psychological issues: [29]

11. [60]

    Her Honour expressly addressed issues of accumulation, and the need to apply the principle of totality. [30] In terms of the offending in sequences 2/91, 3/91, 4/91 and 8/91, her Honour concluded [31] that a “fairly high degree of concurrency” was required, but recognised the necessity for some accumulation in order to reflect the separate and discrete criminality which was involved in those separate episodes of offending. In terms of the offending in sequences 3/53 and 4/53, her Honour concluded [32] that a greater degree of accumulation was appropriate.

12. [61]

    Finally, her Honour made a finding [33] of special circumstances in favour of the applicant, adopting a ratio of 63%. The primary basis of that finding was that the applicant would require a longer period on parole in order to be able to successfully reintegrate into the community. [34]

Submissions of the applicant

1. [62]

   Counsel for the applicant did not assert specific error on the part of the sentencing Judge in support of the proposition that the sentence was manifestly excessive. Counsel relied on two matters which, he submitted, were indicative of manifest excess.

2. [63]

   The first stemmed from the sentencing judge’s application of the 25% discount following the applicant’s pleas of guilty, in respect of which counsel advanced two submissions. First, he submitted that the undiscounted aggregate sentence reflected a starting point of 14 years and 8 months imprisonment, and that this was indicative of a manifestly excessive sentence. Secondly, he submitted that the starting point for the indicative sentences imposed for the offending in each of sequences 3/91, 8/91 and 4/53 reflected that “the 25% discount was not properly applied by the sentencing judge”. [35] Counsel submitted that in each case, the undiscounted sentence incorporated “figures that may seem unusual if the applicant had received the full benefit of the 25% discount” and that “even allowing for some rounding of the figures ….. this is suggestive that the 25% discount was not properly applied by the sentencing judge”. [36]

3. [64]

   Secondly, counsel relied on sentences imposed in other cases which, he submitted, demonstrated the manifest excess of the sentence which was imposed on the applicant. Those cases were Samadi v R; Djait v R, [37] Zahorsky v R, [38] Shi v R [39] and DL v R. [40]

Submissions of the Crown

1. [65]

   As to the applicant’s first complaint, the Crown submitted that any discount applied to reflect a plea of guilty is to be applied to the indicative sentence and not the aggregate sentence. It was submitted that the applicant’s approach, involving as it did focussing upon the undiscounted aggregate sentence, was inconsistent with principle.

2. [66]

   The Crown further submitted that the proposition that her Honour’s application of the discount had yielded “unusual figures” in three particular instances overlooked the fact that the sentencing of an offender involves a process of instinctive synthesis.

3. [67]

   Finally, the Crown addressed, in considerable detail, each of the cases relied upon by the applicant for comparative purposes. Having done so, the Crown submitted that each was distinguishable from the present case on various bases, to the point where none of them provided any support for the conclusion that the sentence was manifestly excessive.

CONSIDERATION

1. [68]

   The ground of appeal which is relied upon requires the applicant to establish that the sentence imposed was unreasonable or plainly unjust. [41] Before addressing the specific matters relied upon by counsel for the applicant in support of such a conclusion, it is appropriate to make three general observations.

2. [69]

   First, the entirety of the applicant’s offending involved, in varying degrees, an intrusive interference upon the personal intimate integrity of the three victims. As the sentencing judge properly pointed out, the offending required the imposition of a stern sentence in order to ensure that effect was given to the principle of general deterrence, and also to ensure that predatory and exploitative behaviour of this kind. [42]

3. [70]

   Secondly, the seriousness with which Parliament views the applicant’s offending is reflected in the prescribed maximum penalties which operate as a sentencing guidepost or yardstick. [43] In particular, the offending in sequence 8/91 carries a maximum penalty of 25 years. Other than offences for which a maximum penalty of life imprisonment is prescribed, a maximum penalty of 25 years imprisonment is the highest available determinate sentence for which provision is made in the Crimes Act 1900 (NSW). [44]

4. [71]

   Thirdly, the applicant's subjective case was unremarkable. He was entitled to (and received) a discount of 25% to recognise his pleas of guilty which were entered at the first available opportunity. Her Honour made favourable findings as to his remorse and prospects of rehabilitation, and also reached what might be regarded as a generous finding of special circumstances, as a consequence of which the ratio between the total sentence and the non-parole period was reduced to one of 63%.

5. [72]

   In terms of the specific matters relied upon by counsel for the applicant, the sentencing judge’s application of the discount of 25% to each of the indicative sentences was entirely correct, and consistent with authority. [45] An approach to a complaint of manifest excess which involves considering the undiscounted aggregate sentence is contrary to principle. In adopting such an approach, counsel for the applicant relied on the judgment of Brereton JA in Chartres-Abbott. [46] In that case, his Honour acknowledged what he described as the “prevailing view” that a discount for a plea of guilty is to be applied to the indicative, rather than the aggregate, sentence. However, he expressed the view that it did not follow that, for the purpose of comparison with other cases, an approach which considered an undiscounted aggregate sentence was impermissible.

6. [73]

   In this respect, Wilson J made the following observations in BB: [47]

7. [74]

   It is not necessary to consider, much less attempt to resolve, any tension between the approach of Brereton JA and that adopted by Wilson J in BB, and in the authorities to which her Honour referred. It is sufficient to note that in the circumstances of the present case, and even if the approach adopted by counsel for the applicant were permissible, it is of no utility given the conclusions I have reached regarding the cases which were relied upon by the applicant for comparative purposes.

8. [75]

   The submission that the starting point for the indicative sentences for the offending in sequences 3/91, 8/91 and 4/53 reflected the adoption of “unusual figures” which, in turn, reflected manifest excess, is without merit. Such a submission entirely overlooks the fact that sentencing an offender involves a process of instinctive synthesis and would, if accepted, have the effect of reducing the process of sentencing an offender to little more than a mathematical exercise.

9. [76]

   As to the previous cases which were relied upon, it is important to emphasise the important concessions which were properly made by counsel for the applicant, [48] namely that:

10. [77]

    Those concessions are significant given the principles which govern this Court when asked to undertake a comparative exercise of this nature. Those principles include the following.

11. [78]

    First, whilst careful comparison of the outcome of a previous case may assist the Court, [49] it remains the case that the individual circumstances of each case must be examined. [50]

12. [79]

    Secondly, such an exercise is to be undertaken with a degree of caution. [51]

13. [80]

    Thirdly, whilst a history of sentencing can establish a range of sentences that have been imposed, that history does not establish that any such range is the correct one, nor does it establish the upper and lower limits of such range, or otherwise fix the boundaries within which future judges must, or even ought to, sentence. [52]

14. [81]

    Fourthly, when considering past sentences, it is only by examination of the whole of the circumstances that have given rise to the sentence that unifying principles may be discerned. [53]

15. [82]

    Finally, what is sought in sentencing is consistency in the application of principle, not numerical equivalence. [54]

16. [83]

    I have considered each of the cases relied upon by the applicant. In light of the concessions made, I do not propose to engage in a lengthy analysis of them. The obvious distinctions which can be drawn between each of them and the circumstances of the present case, both objective and subjective, lead me to the view that they provide no support for the proposition that the sentence imposed on the applicant is manifestly excessive. I am fortified in that view by the following:

17. [84]

    For all of these reasons, the ground of appeal has not been made out.

ORDERS

1. [85]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.