McClelland v R

1. [1]

   MACFARLAN JA: I agree with Fullerton J.

2. [2]

   FULLERTON J: The applicant seeks leave to appeal an aggregate sentence of 12 years imprisonment with a non-parole period of 7 years imposed by Baly SC DCJ on 26 May 2017 after he was convicted after trial on 15 December 2016 of the following offences:

3. [3]

   The jury were unable to agree on two further counts of sexual intercourse without consent, also laid contrary to s 61I of the Crimes Act (Counts 7 and 8 on the indictment).

4. [4]

   The following table summarises the maximum penalty applicable for each offence and, where appropriate, the applicable standard non-parole period. In respect of Counts 1, 2 and 3 the table also identifies the nature of the sexual intercourse the subject of each count and, in respect of Counts 2 and 3, the bodily harm recklessly inflicted in the course of committing those offences. The sentences indicated for each count are also set out.

The facts for sentencing purposes

1. [5]

   The sentencing judge acknowledged that it was necessary that her findings of fact were consistent with the jury's verdicts on Counts 1, 2, 3, 6 and 9 and, further, that in making findings as to the facts and circumstances relevant to Counts 6 and 9, she was obliged to ignore the complainant's evidence of non-consensual acts of sexual intercourse that occurred contextual to that offending (Counts 7 and 8 on the indictment) as to which the jury were unable to agree.

2. [6]

   Counts 1, 2 and 3 related to events which occurred in the late evening of 17 September 2012. Counts 6 and 9 related to events which occurred 18 months later in the evening of 23 February 2014.

3. [7]

   The applicant and the complainant were in a sexual relationship between 2009 and 23 February 2015. By September 2012 they moved into a property owned by the applicant's mother and father. The applicant and the complainant described the relationship as an “on and off relationship”.

4. [8]

   Her Honour the made the following findings referable to the evidence led at trial:

5. [9]

   The sentencing judge made several favourable findings as to the applicant's subjective circumstances. They may be summarised as follows:

6. [10]

   Her Honour was satisfied that special circumstances arose from the fact that the aggregate sentence would be the applicant’s first custodial sentence and that he would need a longer period on parole to reintegrate into the community.

Findings as to objective seriousness

1. [11]

   In order to indicate a sentence for each of the offences the subject of Counts 1, 2, 3, 6 and 9, and to make an assessment of the totality of the applicant’s criminality for the purposes of imposing an aggregate sentence (the exercise mandated by s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW)), her Honour was obliged to make an assessment of the objective seriousness of each offence. That assessment was necessarily informed by the evidence at trial.

2. [12]

   Subject only to the medical evidence which was relevant to proving the nature of the bodily harm recklessly inflicted by the applicant to the complainant’s vagina and anus in the commission of the sexual assaults the subject of Counts 2 and 3 on the indictment, her Honour’s assessment of the objective seriousness of each of the five counts was based exclusively on her assessment of the complainant’s evidence. That assessment was also necessarily informed by her direction to the jury that if verdicts of guilty were to be returned on any of the counts upon which the jury were deliberating, they needed to be satisfied that the complainant was both an honest and accurate witness and that in making that assessment they should examine her evidence very carefully to assess whether they were satisfied that they could act upon it to the very high standard required in a criminal trial.

3. [13]

   The applicant did not give evidence. An ERISP was tendered in the Crown case in which he denied any acts of non-consensual intercourse. He also denied detaining the complainant either in the car or in the house (the conduct the subject of Counts 6 and 9).

4. [14]

   Her Honour’s findings as to objective seriousness are conveniently summarised in a further table extracted below. The table also includes, where relevant, the submissions advanced by the parties at the sentence hearing and, to the extent that there is any different position taken by the parties on the appeal, the extent of that difference.

The grounds of appeal

1. [15]

   The applicant relies on three grounds of appeal:

   1. (1)

      The sentencing judge erred by making findings as to the objective seriousness of the offences which contravened concessions made by the Crown and of which the applicant was not on notice.

   2. (2)

      The sentencing judge erred in assessing the objective seriousness of Count 6 by:

   3. (3)

      The sentencing judge imposed an aggregate sentence upon the applicant that is unreasonable or plainly unjust.

The first ground of appeal

1. [16]

   An assessment of objective seriousness is not the sole determinant of an indicative sentence or an appropriate aggregate sentence. The orthodox approach to the exercise of the ultimate sentencing discretion is to ensure that all factors bearing on the imposition of a just and appropriate aggregate sentence are synthesised. That said, an assessment of the objective seriousness of the applicant's offending for each of the five offences was essential to the sentencing exercise in which the sentencing judge was engaged.

2. [17]

   An assessment of objective seriousness necessarily involves the exercise of an evaluative judgment by the sentencing judge. For that reason, usually, although not invariably, the question of the objective seriousness of the offending the subject of a sentencing exercise attracts competing submissions at the sentencing hearing, and necessarily so where the assessment is in contest. On occasions, the Crown concedes that particular offending should or ought be regarded by the sentencing court as reflecting a particular degree of objective seriousness or moral culpability. In those circumstances, a departure from that concession by the sentencing judge, without the offender being given the opportunity of addressing the issue by submissions or evidence, may be productive of a denial of procedural fairness resulting in a miscarriage of justice.

3. [18]

   The question raised by this appeal is whether the Crown conceded that the objective seriousness of the offending the subject of Counts 1, 2 and 3 was below mid-range as the applicant contends, citing DL v The Queen [2018] HCA 32 as authority for the proposition that the sentencing judge was bound by that concession, or whether the Crown simply advanced a submission in the sentencing hearing as to the approach her Honour might take in her assessment of the objective seriousness of those offences.

4. [19]

   In DL, the Crown had made clear its position before the Court of Criminal Appeal on re-sentence that no issue was taken with the assessment of criminality made by the primary judge. At [39] the High Court acknowledged the correctness of the position of Leeming JA that the Court of Criminal Appeal was not bound by the Crown’s concession (see Carroll v The Queen [2009] HCA 13 at [24]). However, the Court went on to say:

5. [20]

   In addition to relying on DL, the applicant referred the Court to Chong v R [2017] NSWCCA 185 where, at [5], Basten JA said (Harrison J agreeing, Schmidt J dissenting):

6. [21]

   Having regard to the extracts from DL and Chong above, I accept that were the Crown Prosecutor to have conceded, either expressly or by necessary implication, that the offending the subject of each of Counts 1, 2 and 3 was no higher than low range offending, that would have operated to constrain the exercise of the judge’s sentencing discretion such that a finding of objective seriousness contrary to the Crown’s concession, without notice to the applicant that she was minded to take a different approach, would have been productive of a procedural unfairness. However, for the following reasons I am not satisfied that is what occurred.

7. [22]

   Her Honour received sentencing submissions from the Crown and the applicant in advance of the sentencing hearing. The applicant's senior counsel (also the applicant’s counsel at trial, although not his counsel on the appeal) furnished his submissions on 25 May 2017, the day before the sentence hearing. Despite the fact that the three offences the subject of Counts 1, 2 and 3 attracted a standard non-parole period between 7 and 10 years, save as to submit that “each of the convictions related to a serious crime and the relevant standard non-parole periods reflect the seriousness of each offence", the applicant’s counsel made no submission at all in respect of the objective seriousness of the applicant’s offending. In contrast, he submitted that in respect of Counts 6 and 9, as to which no standard non-parole attached, the “level of violence involved is at the lowest end of the spectrum”.

8. [23]

   The Crown Prosecutor furnished his submissions on the day listed for the sentence hearing. He referred the sentencing judge to the graphic detail in which the complainant described the applicant’s sexual abuse of her over the course of conduct comprehended by Counts 1, 2 and 3 (accompanied by relevant transcript references). He also referred her Honour to those features of the gravity of the offending against both ss 61l and 61J identified in Simpson v R [2014] NSWCCA 23 at [30] and DN v R [2016] NSWCCA 252; 92 NSWLR 600 at [107]) relevant to an assessment of the objective seriousness of particular offending, including the mechanism of forced sexual intercourse (in this case both oral, penile and anal); the degree of violence used; the physical harm inflicted; and the circumstances of humiliation the complainant experienced. He also submitted that, together with the medical evidence of anal and vaginal injury and the complainant's evidence that she felt excruciating pain and was screaming throughout the course of the anal intercourse, she was also humiliated at being forced to have penile/vaginal and penile/anal intercourse and then be forced to perform fellatio. Finally, the Crown advanced the somewhat surprising submission that the offending the subject of each of Counts 1, 2 and 3 was “just below the mid-range of objective seriousness”. With respect to Counts 6 and 9, the Crown submitted that “the offending was well below the mid-range of objective seriousness but above the lower end of the scale”.

9. [24]

   At the sentencing hearing her Honour acknowledged receipt of the written submissions from both parties. She enquired of Senior Counsel for the applicant as to whether he wished to address his written submissions orally. He declined the invitation. She then enquired of the Crown Prosecutor as to whether he wished to address his written submissions; an invitation which he also declined. In declining the invitation to advance oral submissions Senior Counsel for the applicant ultimately advanced no submission at all on the question of objective seriousness of Counts 1, 2 and 3.

10. [25]

    The applicant adduced no evidence on the appeal as to why Senior Counsel took that approach. Furthermore, there is nothing in what transpired in the sentencing hearing to suggest that counsel was of the opinion that the Crown had made a concession as to objective seriousness which would bind the sentencing judge thereby relieving him of the obligation of addressing the issue on the applicant’s behalf; the interpretation of events advanced by Senior Counsel who appeared for the applicant on the appeal. As I see it, an available inference, although not the only inference, is that Senior Counsel considered it at least a possibility that the sentencing judge may accept the Crown's submission that the objective seriousness for each of Counts 1, 2 and 3 was “just below the mid-range”, and took the course of making no submissions at all on the question in case her Honour was persuaded to come to a different view.

11. [26]

    Whether that was an informed decision by Senior Counsel is not to the point. The question on this appeal is whether a submission by the Crown in sentence proceedings (either orally or in writing) that particular offending positioned referable to a notional point on a spectrum of offending from low range to high range (or by some other formulation of words) obliges the sentencing judge to regard that submission as a concession by the Crown that no other finding is open.

12. [27]

    In Stojanovski v R [2013] NSWCCA 334 the same issue was raised as that raised on this appeal. At [30]-[34] Simpson J held that a sentencing judge is not bound to accept the Crown's submitted assessment of the objective gravity of an offence, the matter being entirely within the province of the sentencing judge. As Walton J observed at [52] in Battersby v R [2018] NSWCCA 141 (citing Salafia v R [2015] NSWCCA 141 at [76]), because the assessment of objective seriousness is a discretionary process, the positioning of objective seriousness on a spectrum does not readily admit of precision since it calls for a value judgment as to which minds might reasonably differ. His Honour went on to observe that fine gradations in what he described as “the factors underpinning the assessment of objective seriousness” (in that case between a finding that the offender was “well above the lowest rung of a drug trafficking hierarchy” and his role being “a little higher than the lowest rung of the hierarchy”) could never be a basis for a finding of error in a sentencing exercise.

13. [28]

    In this case the Crown submitted that “the shades of differences” between her Honour’s assessment of the objective seriousness of each of Counts 1, 2 and 3 relative to the mid-range, while both significant and verifiable differences given that Count 3 was self-evidently the more serious of the three offences, nonetheless had mid-range offending as a reference point, and that each was a finding open to her.

14. [29]

    Where the language used by a Crown Prosecutor is that which is customarily used when advancing a submission for the consideration of a sentencing court (as it was in this case), and in circumstances where, as here, there were no oral submissions advanced by either party which might have elevated the Crown’s submission to a concession that the objective seriousness of Counts 1, 2 and 3 was in the low range, it is simply not open to read into that language any concession by the Crown that no other finding was open. I note that elsewhere in the Crown’s written submissions it was conceded that there was a low level of violence deployed by the applicant other than by the act of intercourse itself.

15. [30]

    I would reject the first ground of appeal.

The second ground of appeal

1. [31]

   The discrete passage in the sentencing remarks which is said to reflect error is included at [8] above but extracted here for clarity:

2. [32]

   The applicant submitted that to the extent that her Honour was entitled, in indicating a sentence for Count 6, to make factual findings additional to the facts that were comprehended by the jury verdict on that Count, she was not entitled to undertake any analysis of the reason the jury were unable to reach a unanimous verdicts on Counts 7 and 8 and that, in any event, the reason for their lack of unanimity was indeterminable. In short, the applicant submitted that the facts relied upon by the Crown at trial for proof of Counts 7 and 8 were wholly irrelevant in indicating a sentence for Count 6.

3. [33]

   The breadth of that proposition is contrary to sentencing principle. In assessing the seriousness of a breach of s 86(1) of the Crimes Act her Honour was entitled to take into consideration the circumstances in which the complainant was detained, the purpose for which she was detained, and the period of detention (see R v Speechley [2012] NSWCCA 130).

4. [34]

   In this case, the jury's verdict on Count 6 necessarily encompassed a finding that the applicant detained the complainant in the bedroom for psychological gratification (the element of advantage particularised by the Crown at trial) and that he detained her by preventing her from leaving the bedroom by the use of force as further particulars of the way in which that offence was committed. It was also clear from the way in which the trial was conducted that it was during the course of the complainant’s detention in the bedroom that the applicant committed the alleged offences the subject of Counts 7 and 8.

5. [35]

   Her Honour was acutely aware she was not permitted to take into account the penile and oral acts of allegedly non-consensual sexual intercourse that occurred during her detention in the bedroom since those acts were not comprehended by the jury's verdict on Count 6. It is clear from the extract above that it was those acts which her Honour disregarded. The applicant does not contend otherwise. What her Honour was concerned to identify were the other acts (that is those acts that did not comprise the forced penile and oral acts of intercourse) that were prevailing whilst the complainant was subject to the applicant’s unlawful detaining of her in the bedroom as relevant to what her Honour described as “the nature of the detention at that time”. In my view, that was a permissible and appropriate enquiry to undertake. It follows that the applicant’s contention that her Honour was not permitted to take into account what occurred in the bedroom after the complainant was prevented from leaving the bedroom by blocking her exit must be rejected. As part of the argument advanced in support of the second ground of appeal, the applicant also submitted that in the course of her Honour making such further factual findings that she considered properly informed the circumstances in which the complainant was detained for advantage in the bedroom, she traversed matters which had been left to the jury as relevant solely to the question of consent and the applicant's knowledge or recklessness as to the lack of consent; the factual contest inherent in the applicants pleas of not guilty to Counts 7 and 8.

6. [36]

   As I read the sentencing remarks, her Honour refers to the jury being unable to agree upon their verdicts on Counts 7 and 8 so as to make clear that she would not traverse the fact that the jury did not return verdicts on those counts. She was not undertaking an ambit enquiry into the jury's reasoning process for an impermissible reason. To the contrary. By the deployment of very qualified language as to how the jury might have approached the evidence bearing on the issues relevant to proof of lack of consent and the applicant’s knowledge of it, she was marking out the permissible limits of her fact-finding exercise for sentencing purposes on Count 6.

7. [37]

   The applicant further submitted that her Honour made a number of factual findings which were said to be erroneous:

8. [38]

   In the way in which the argument was advanced on appeal, (a) was not pressed. As to (b) and (c), they have been extracted in the applicant's written submissions as separate findings of fact from what her Honour described in her reasons for sentence as “threats concerning anal intercourse and [threats concerning] the use of duct tape”.

9. [39]

   The Crown accepts that there was no evidence that in the circumstances relied upon by the Crown to prove the applicant detained the complainant with intent to obtain an advantage contrary to s 86(1) of the Crimes Act that the applicant expressly threatened to anally rape the complainant or, for that matter, that he made that express threat as part of the factual matrix comprehended by Counts 7 and 8. The Crown pointed out however that the complainant gave evidence that while the applicant was straddling her on the bed (before committing what were alleged to be non-consensual acts of intercourse) he produced silver duct tape and threatened to tape her hands and mouth. In cross-examination she gave the following evidence:

10. [40]

    The complainant also said:

11. [41]

    That evidence was preceded by the complainant’s evidence as to how she came to be detained in the bedroom:

12. [42]

    The Crown submitted that in indicating a sentence for Count 6 it would be have been open to her Honour to take into account an implicit threat of anal intercourse by the applicant threatening the complainant that “things could turn bad” if she did not submit, coupled with her further evidence that she did not want to feel the pain she experienced during the forced anal intercourse she had been subjected to 18 months earlier (the subject of Count 3 on the indictment). The Crown also submitted that even if there were no evidential foundation to find that "there were threats concerning anal intercourse”, whether express or implied, that error had no material bearing on her Honour’s assessment of the objective seriousness of Count 6 in circumstances where there was evidence that the applicant produced duct tape and threatened to use it to tape the applicant's hands and mouth during the course of the complainant being detained unlawfully in the bedroom. The Crown submitted, and I accept, the existence of the duct tape and its threatened use, quite apart from the threat of forced anal intercourse, was a fact available for sentencing purposes on Count 6 as part of the factual matrix in which that offence was committed, in addition to it being part of the factual matrix in which it was alleged non-consensual acts of sexual intercourse occurred.

13. [43]

    In the result, I am not satisfied that there is a material sentencing error in the sentencing judge’s approach to the assessment of the objective seriousness of Count 6 on the indictment.

14. [44]

    I would reject the second ground of appeal.

The third ground of appeal

1. [45]

   The principles that apply when an offender complains that a sentence is manifestly excessive are well settled, as is the approach to that question where an aggregate sentence has been imposed. In the latter case the question is not whether the indicative sentences are “unreasonable or plainly unjust” since they are not themselves amenable to appeal. The question is whether the applicant can establish that the aggregate sentence, reflecting the totality of the criminality the subject of the sentence proceeding, can be so described (see Newman and Kerr v R [2016] NSWCCA 218).

2. [46]

   The applicant’s written submissions in support of this ground of appeal are cast on the basis that Counts 1 and 2 constituted offending below the mid-range of objective seriousness whilst Count 3 was an offence in the mid-range. That is, foundational to the complaint of a manifestly excessive aggregate sentence is the submission that the indicative sentences on each count overstated the objective seriousness of the offending and implicitly understated the applicant’s subjective case, leading to a manifestly excessive aggregate sentence. For the reasons already given in rejecting the first ground of appeal, I am not persuaded that her Honour's assessment of objective seriousness of Counts 1, 2 and 3 was in error or there is any error in the sentence indicated for Count 6 as contended for in the second ground of appeal.

3. [47]

   In addition, and to the extent that the applicant’s written submissions suggest that because the offences occurred in the context of an intermittent intimate relationship between the applicant and the complainant the objective criminality of his overall offending is reduced, I would reject that submission (see R v Cortese [2013] NSWCCA 148 at [55]).

4. [48]

   Finally, although the applicant had a number of favourable features in his subjective case, given the seriousness of the offending the subject of Count 3, I consider an indicated sentence of 11 years with a non-parole period of 6 years was open. Similarly with the sentences indicated for Counts 1 and 2. When the offending the subject of Counts 6 and 9 is also taken into consideration for totality purposes, an aggregate sentence of 12 years with a non-parole period of 7 years is neither unreasonable nor plainly unjust.

5. [49]

   I would reject the third ground of appeal.

Orders

1. [50]

   I would propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is dismissed.

2. [51]

   BELLEW J: I agree with Fullerton J.