Sims v R

1. [1]

   BASTEN JA: I agree with Lonergan J.

2. [2]

   HAMILL J: I agree with Lonergan J.

3. [3]

   LONERGAN J: On 18 February 2018, the applicant was sentenced by Judge Bennett SC for crimes he committed in 1996:

4. [4]

   The offending occurred in the early hours of 9 March 1996 but the applicant was not found by police to have been the perpetrator until a DNA match in late 2015 led to his arrest and extradition from South Australia on 18 May 2016.

5. [5]

   The applicant entered guilty pleas in April 2017. Judge Bennett SC imposed an aggregate sentence of 15 years with a non-parole period of 10 years. The indicative sentence for count 1 (taking into account the Form 1 offence) was 13 years and 2 months, and for count 2, 7 years and 8 months. The indicative sentences incorporated a 12% discount for the utilitarian value of the guilty pleas.

6. [6]

   The applicant seeks leave to appeal his sentence on 3 grounds:

   1. (1)

      his Honour erred in finding that there was no evidence of rehabilitation;

   2. (2)

      his Honour erred in failing to take into account evidence of mental illness;

   3. (3)

      the sentence was manifestly excessive.

7. [7]

   None of the grounds of appeal have been made out, and while there should be a grant of leave to appeal, the appeal must be dismissed.

The offending

1. [8]

   A statement of agreed facts was tendered before the sentencing judge from which these facts have been extracted.

2. [9]

   At the time of offending the applicant was 24 years of age and was a soldier in the Australian Army, employed as a transport driver at the Holdsworthy Army Barracks.

3. [10]

   On the night of 8 March 1996, the applicant and a friend attended a nightclub that was part of Parramatta Leagues Club. At some point during the night or early in the hours of 9 March, he met the victim, JP, who was 19 years old at the time and employed as a legal secretary. JP told the applicant that she had a boyfriend who played with the St George Dragons Rugby League team. The applicant told her that the applicant also played for the St George Dragons, a statement that was untrue. The applicant told JP that he knew her boyfriend and said “You’re not Andrew’s girlfriend. Andrew’s girlfriend’s name is Sonya”.

4. [11]

   JP and the applicant danced for a while and JP grew very concerned that her boyfriend was cheating on her and asked the applicant for more information.

5. [12]

   The applicant and JP exited the club. Shortly after they left, the applicant punched JP in the face and she fell to the ground and lost consciousness. JP had no further recollection of events, however, according to the agreed facts, the applicant then moved JP to the side of an embankment near the car park which led into Parramatta Park, a very dark and secluded area with no lighting. The applicant then removed JP’s underpants and pantyhose and moved her skirt intending to sexually assault her. This offence was not completed, however, because the applicant ejaculated on the ground near JP before he completed the offence.

6. [13]

   The applicant then moved JP down the embankment where he left her.

7. [14]

   At about 2.55am two police officers patrolling the outer perimeter of the Parramatta Leagues Club car park found JP lying unconscious and semi-naked on the embankment. They saw a large amount of blood on her face, a severe laceration to the left side of her face around her lips and extensive swelling around her left eye. They saw that her skirt was pulled up above her waist exposing her genitals and that the top of the dress was rumpled and her underpants and pantyhose were around her ankles, with one of her shoes entangled in the underpants and pantyhose.

8. [15]

   Police also observed a large pool of blood on the embankment near JP and a small trail of blood spatter and strewn pieces of toilet paper or similar, and a black purse. JP was conveyed to Westmead Hospital and was examined by a doctor and a SAIK (Sexual Assault Investigation Kit) was completed.

9. [16]

   The following injuries were sustained by JP:

10. [17]

    JP required assistance going to the toilet and was frightened of being left alone. She was unable to eat unassisted and was fed via a syringe as she was unable to use a straw.

11. [18]

    On 22 March 1996 JP was transferred to Nepean Hospital for surgery to repair her broken jaw using plates and screws. She was discharged on 24 March, having been in hospital for a total of 15 days and having undergone multiple surgical procedures.

12. [19]

    On 9 March 1996 the applicant had presented to casualty at the Field Base Hospital with a deep laceration to his right hand claiming that he had sustained the injury when fixing a vehicle. The medical records indicate that it was deep trauma to soft tissue to a localised area about two centimetres in width. He received five sutures to the area and required daily dressing.

13. [20]

    The police investigation proceeded until late April 1996 and then was suspended.

14. [21]

    On 11 November 2015 the applicant was identified as a suspect via a DNA link. The small trail of blood spatter recovered from the twig and leaf matter at the crime scene was found to contain DNA associated with the applicant and the investigation was reopened.

15. [22]

    On 17 March 2016 investigators requested the blood stain on the inside of the white underpants worn by JP be analysed and it was determined that the blood stain also contained DNA associated with the applicant.

16. [23]

    On 18 May 2016 the applicant was taken into custody and extradited to New South Wales from South Australia. The applicant consented to extradition without a hearing being required.

17. [24]

    A record of interview was conducted in which the applicant told police the following:

The sentencing proceedings

1. [25]

   The sentencing proceedings spanned a number of days. There was focus on the veracity or otherwise of the applicant’s presentation of mental illness. The crown tendered statements from two corrective services officers and tendered records from the Metropolitan Remand and Reception Centre (MRRC) including clinical notes and Justice Health Notes.

2. [26]

   A victim impact statement from JP was tendered together with photographs of JP taken shortly after the attack and others taken in July 2017 showing the extensive scarring still visible on her face.

3. [27]

   The applicant’s criminal history from New South Wales, South Australia and the Northern Territory were also tendered together with a transcript of sentencing proceedings for a sexual assault he committed in August 1996 against a 15 year old girl, a subject to which I will return.

4. [28]

   The applicant tendered three reports of Dr Furst psychiatrist, the first directed towards fitness for trial involved a 70 minute interview in September 2016; the second, dated 28 September 2017 included a document review as the applicant did not cooperate with a further assessment; and the third, addressed the risk of re-offending in light of the sexual offending in August 1996 of which Dr Furst had not earlier been made aware. Dr Furst was called and cross-examined at some length.

5. [29]

   References were tendered and one of the referees – the applicant’s housemate in 2014 – was called to give evidence. This evidence suggested that the applicant had told his housemate that the applicant had gone to NSW to own up to this offending.

6. [30]

   The Crown re-opened its case to tender a statement of DSC Morgan which stated that no such “owning up” had occurred when he had dealt with the applicant in March 2014 regarding the applicant’s assertions that he had been sexually abused as a child.

7. [31]

   Detailed written and oral submissions were provided to the sentencing judge.

8. [32]

   In the sentencing reasons, after outlining the facts of the offending, his Honour made reference to the evidence regarding the effect of the attack upon the victim, which included a psychologist’s report. His Honour noted that the applicant was physically fit, that he was trained in martial arts and was a high level kick boxer and may have been using steroids. [1] At the time of the offending the applicant had no criminal antecedents and these are the only offences that he has committed in New South Wales; but after these offences he left the jurisdiction for the Northern Territory where he accumulated a range of offences and was imprisoned.

9. [33]

   His Honour referred to the victim impact statement [2] noting that whilst an appreciation of JP’s experience is provided by way of that victim impact statement,

10. [34]

    It was noted by his Honour that the applicant did not give evidence. He noted there were various more minor offences for which the applicant was convicted in the Northern Territory and, relevantly, a charge of unlawful sexual intercourse with a female in August 1996 for which he was convicted in October 2009.

11. [35]

    His Honour noted that the offence of unlawful sexual intercourse involved a 15 year old victim. The applicant was committed for trial but fled the jurisdiction until he voluntarily returned in 2009 and reported to police, to “clear those matters” after he had found religion.

12. [36]

    The circumstances of the offending involving the 15 year old girl were described and his Honour had the sentencing remarks of the judge who sentenced the applicant in the Northern Territory in 2009. The applicant met and spent the night with the victim’s older sister. In the morning he went to the room where the victim and her friend were sleeping and then, without her consent, had penile vaginal intercourse with her and fondled her breasts despite her resisting. He told her not to tell anyone. The victim was in pain and bleeding. This was the first time she had experienced sexual intercourse. She told her friend, who ordered the applicant from the house after taking pictures of him to ensure his identification.

13. [37]

    His Honour referred to the applicant attending on police in New South Wales but “without the same measure of candour” as he had when he presented to police in the Northern Territory when he “turned himself in” for his August 1996 sexual offending. The relevant NSW Police officer, DSC Morgan said in his statement that the applicant’s exchange with him did not include any admission to the offending in March 1996 at Parramatta. Instead, the applicant was vague and did not offer any reason why NSW Police would want to speak to him. [3]

14. [38]

    His Honour observed that the applicant had given a different version of the encounter to Dr Furst to the account given by DSC Morgan. His Honour held that the Northern Territory offending (involving the sexual attack on the 15 year old girl a few months after these offences) was “relevant to the question whether the offender is deserving of leniency by reason of the absence of an antecedent criminal record.” He concluded that “the offender’s subsequent conduct demonstrates that his attack [upon this victim] was not aberrant but was the first and most serious episode of criminality which continued into the Northern Territory to which he fled.” [4]

15. [39]

    Reference was made to the written references from persons associated with the Lutheran Church in Adelaide which asserted that the applicant had “led and will lead a very productive life in society in years to come”, that he is “nice” and “a gentle giant, a friendly man with compassion and caring who willingly gave of his time to help those in need”.

16. [40]

    His Honour noted that the representations as to the applicant’s good character and conduct were considered in the Northern Territory proceedings without knowledge of the NSW offending, and that these had earned him a measure of leniency because the Court there was left with the impression that he had changed course and was well advanced in rehabilitation.

17. [41]

    His Honour then observed: [5]

18. [42]

    His Honour then dealt with the issue joined between the defence and the Crown as to whether the applicant had a mental health impairment which rendered his incarceration more onerous.

19. [43]

    His Honour examined the expert reports and evidence of Dr Furst and the evidence of the two Corrective Services officers, Ms Moffatt and Mr Zemetka, about their observations of the applicant and what they considered to be his manipulative behaviour, particularly relating to what they considered to be feigning symptoms of anxiety and mental illness when the applicant was aware that he was being observed or assessed. [6]

20. [44]

    Reference was made to the cross-examination of Dr Furst and his explanation for the tremor that the applicant was demonstrating, which included that the tremor can be caused by the medication the applicant was being given. His Honour referred to Dr Furst's diagnosis that the applicant suffered from substance use disorder, anxiety disorder with features of panic disorder, PTSD, psychotic disorder not otherwise specified, and borderline personality disorder. [7]

21. [45]

    His Honour noted the history given by the applicant to Dr Furst of childhood sexual and other abuse, [8] and his use of anabolic steroids and alcohol. The applicant told Dr Furst that he “..rang police in 2014. I wanted to see if I had a warrant. I rang them again three weeks before they arrested me in April 2016. The issue had not been dealt with. I thought God wanted me to do it”. [9]

22. [46]

    His Honour referred to the applicant telling Dr Furst that in 1996 he was “angry” and using drugs. [10]

23. [47]

    His Honour concluded on these issues as follows: [11]

24. [48]

    Under the heading “Submissions and consideration” his Honour noted that he was required to sentence the applicant having regard to the sentencing practices at the time of the commission of the offences, taking into account objective gravity and the subjective circumstances of the offender.

25. [49]

    His Honour rejected the submission of counsel for the applicant that the offending was at the low end of the range because of lack of premeditation, lack of a weapon and that there was no lasting physical impact upon the victim. His Honour described the attack as vicious and that planning and premeditation to a degree came into play as at some time during the contact with the victim, the applicant told lies about knowing her boyfriend. He noted that no weapon was used, but that the applicant was equipped with martial arts skills, fitness and strength. He accepted an overlap with the attempted sexual intercourse and that there would be a measure of accumulation and a discount for the guilty plea.

26. [50]

    As to the submission that the sentencing was for stale offences, and associated observations about rehabilitation, his Honour said: [12]

27. [51]

    His Honour dealt with the objective seriousness of the offending this way: [13]

28. [52]

    His Honour accepted a discount of 12% for the guilty pleas and noted that self-induced intoxication is not a mitigating factor. His Honour dismissed any idea that s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”) applied because the applicant did not disclose the offending but attended the NSW Police in a manipulative attempt to find out if he was at risk. [14]

29. [53]

    Further in respect of the issue of rehabilitation, his Honour said the following: [15]

30. [54]

    On the question of the question of incarceration being more onerous because of existing mental health issues, his Honour concluded: [16]

31. [55]

    Taking into account the evidence from Dr Furst, his Honour made a finding of special circumstances, reducing the parole period of the overall sentence: [17]

32. [56]

    On the prospects of rehabilitation his Honour said: [18]

Ground 1 – finding that there was no evidence of rehabilitation

1. [57]

   The applicant argued that the sentencing remarks betrayed a restrictive interpretation of rehabilitation and that “all that is required to demonstrate rehabilitation is that a person had ceased to offend and acknowledges their wrongdoing” (AWS [36]). Emphasis was placed on the applicant’s cooperation with authorities by making admissions to the offences and not opposing extradition.

2. [58]

   He submitted that because of the error regarding rehabilitation, the sentence was longer than it should be; the weight given to specific and general deterrence was greater than it ought to have been and obscured the fact that the sentencing judge was sentencing the applicant for a stale crime, where his subjective case was substantially different at the time of sentence.

3. [59]

   The Crown contended that the judge did not find there was no evidence of rehabilitation but rather, upon review of the whole of the material, the applicant had not reached a stage of rehabilitation that persuaded his Honour that the prospects for further rehabilitation were good; the applicant had not “demonstrated” rehabilitation. [19]

4. [60]

   Certain parts of the applicant’s assertions were rejected by his Honour; in particular that the victim made the first sexual advance, that he had accidentally struck the victims head with his arm, that he was afraid the victim would get him into trouble so he started punching her in the face, and that in trying to hit her, a stick came up and injured him.

5. [61]

   His Honour concluded that the applicant was manipulative and had sought to reduce the punishment that he so justly deserved, [20] taking into account the finding his Honour made that the applicant did not go to NSW to acknowledge his crime but to find out if he needed to be concerned about what awaited him in NSW. The applicant bore the onus of proof regarding matters in mitigation, including, if necessary, that the applicant give evidence to persuade the sentencing judge. He did not discharge that onus

6. [62]

   Other evidence underpinning his Honour’s conclusions was the manipulative behaviour whilst in custody. The emphasis on “demonstrated rehabilitation” was relevant where the applicant had not addressed the underlying causes of his behaviour and was assessed as still having a moderate to high risk of reoffending, noted in the Static 99-R instrument set out in the 19 October 2017 report, although Dr Furst thought the actual risk to be lower.

7. [63]

   This ground of appeal is not made out. A number of issues were raised on the evidence before the sentencing judge directly relevant to the question of rehabilitation. Misrepresenting the extent to which he had “admitted” his offending to police when he was in New South Wales in 2014, manipulative behaviour whilst on remand angled at maximising potential reductions to his sentence, and making assertions that had the flavour of victim-blaming were all matters relevant to his Honour’s conclusion as to whether rehabilitation had been established.

8. [64]

   His Honour’s conclusion required a weighing of the evidence, a matter very much within the province of the sentencing judge. His conclusion that rehabilitation had not been demonstrated, despite the effluxion of over 20 years since the offending, was open on the evidence. There was no error.

Ground 2 – failing to take into account evidence of mental illness

1. [65]

   Like the first ground, this ground of appeal is overstated. The argument seems to be more that the evidence of the observations of the two Corrective Services officers was given primacy that it should not have been given because they were not qualified to make a psychiatric diagnosis, but Dr Furst was. Dr Furst diagnosed serious mental illness, namely treatment resistant schizophrenia as well as anxiety and depression. The mental illness diagnosed by Dr Furst is relevant to the applicant not being a proper vehicle for general deterrence and ought to have been taken into account as making his time in custody more onerous. His Honour failed to do this and so was in error.

2. [66]

   The Crown argued that his Honour did not entirely reject Dr Furst’s opinion, but merely expressed caution about the unequivocal terms of his diagnosis, given that Dr Furst had assessed the applicant only once for 70 minutes. Further, his Honour had had the benefit of the tendered records and the evidence, including the cross-examination of the Corrective Services officers, as well as Dr Furst’s analysis.

3. [67]

   The question of the existence, nature and extent of the applicant’s mental illness is one of fact, thus requiring the applicant to establish that there was no evidence to support the finding that his Honour made, or that the evidence was all the other way, or at the least, that the finding was not reasonably open: Aoun v R; [21] Peters v R. [22] It was submitted orally that, even on the wider test for review set out in the judgments of Basten JA and Hamill J in Clarke v R, [23] there would be no different outcome.

4. [68]

   This ground of appeal also fails. The opinion of an expert is critically dependent on the facts underlying it having been made out. The conclusion that his Honour drew that the offender may suffer from some underlying condition, but he had exaggerated his symptoms to assist his sentencing outcome, was entirely open on the evidence. The evidence comprised not only the repeated observations of the DCS officers that called into question the consistency of the applicant’s presentation, but the assertions confidently made by the applicant himself as recorded in the DCS notes, when he told staff shortly before his sentencing hearing commenced, that sentences can sometimes be reduced by 15-25% for historical charges, and that he was claiming suicidal thoughts and mental health problems as he was hopeful this may justify a reduced sentence as he was very aware that his crime on a girl was “very nasty”.

5. [69]

   His Honour gave the applicant the benefit of a finding of special circumstances in recognition of his difficulties associated with his mental illness and that he would find custody more onerous. This too indicated that the mental illness of the applicant was taken into account.

Ground 3 – Manifest excess

1. [70]

   The applicant submitted that the aggregate sentence was manifestly excessive because the judge (i) disregarded the staleness of the offence; (ii) wrongly found a degree of planning; (iii) indicated a starting point for count 1 of 15 years, and (iv) wrongly assessed the objective seriousness of count 2 as above the mid-range, given that it was an attempt rather than a completed offence.

2. [71]

   With respect to the “staleness” of the offence, the applicant relied upon a passage in the reasoning of Howie J in R v Moon [24] indicating that “where there has been such a lengthy delay between offence and sentence and where the offender is rehabilitated, it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct.” However, the critical element in this passage is acceptance of the fact that the offender “is rehabilitated”; the justifiable refusal of the sentencing judge to accept that there had been a significant level of rehabilitation rendered the principles of less significance.

3. [72]

   Nor is it accurate to refer to a “lengthy delay” between the offence and sentence. There was a significant lapse of time, during which the offender escaped identification and punishment. That of itself provides no necessary basis for a reduction in an otherwise appropriate sentence. Even the label “stale offence” is unhelpful in this context.

4. [73]

   So far as planning was concerned, the submissions set out above have fully addressed the circumstances of the offending. The objective circumstances do not suggest a spontaneous attack; there was a degree of planning. The judge’s finding did not suggest any planning prior to the evening in question. The finding was constrained, if not inevitable. The written submissions for the applicant indulged in speculation as to when precisely the applicant formed the intention to physically harm the victim. The suggestion that the attack was “spontaneous”, as submitted for the applicant, was not reasonably available.

5. [74]

   With respect to the calculation of the starting point for the offence of maliciously inflict grievous bodily harm, the arithmetic is correct: prior to the 12% discount, the sentence indicated for that offence was 15 years.

6. [75]

   While it is true that the judge did not make a finding as to where on a range of objective seriousness the offence lay, there can be no doubt that he accepted, first, that it lay above the mid-range and, secondly, that the offender was entitled to no leniency because he did not have a prior record of such offending. To commence with a sentence which was 60% of the maximum penalty could not be said to have been outside an appropriate range. It is to be remembered that the Form 1 offence was taken into account in indicating the appropriate sentence which would have been imposed for count 1.

7. [76]

   Even had the sentence indicated for the individual offence been somewhat above an appropriate range, no necessary consequence would follow with respect to the aggregate sentence. The submissions for the applicant stated that “the indicative sentence for that offence made up the majority of the aggregate sentence.” [25] It was true that it was the longer of the two putative individual sentences, but how the sentences would have been accumulated and allowance made for totality is not known. Rather, the aggregate sentence constituted the effective sentence having regard to the totality of the offending.

8. [77]

   With respect to the objective seriousness of count 2, the assessment that it fell above the mid-range was not to be gainsaid because it was only an attempt. All the preliminary steps, including rendering the victim unconscious, had already taken place. The attempt was not completed because the offender ejaculated before carrying out his intention. An unconsummated act, constituting an attempted offence, does not necessarily involve a level of objective seriousness significantly below that for an offence which has been completed. Nor is there any basis for concluding that a more serious characterisation of objective seriousness might not have been reached had the offence been completed. The starting point for the indicative sentence for count 2 was a little over one-third of the maximum penalty. It cannot be said, therefore, that the sentence indicated for that offence demonstrated any degree of excess.

9. [78]

   Given the seriousness of the offending, which has been recounted above, there is no basis for concluding that the aggregate sentence in fact imposed was manifestly excessive. This ground of appeal must be rejected.

Orders

1. [79]

   The sentencing judge gave detailed reasons for his conclusions, having careful regard to all the matters raised for his consideration. A significant sentence was imposed more than two decades after the offending occurred. Although appropriate, the sentence was lengthy. Accordingly it is appropriate to grant leave to appeal, but the appeal must be dismissed.

2. [80]

   The Court should make the following orders:

   1. (1)

      Grant the applicant leave to appeal against the sentence imposed on him in the District Court on 21 February 2018.

   2. (2)

      Dismiss the appeal.