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Court of Criminal Appeal 8 October 2010

COLE v R

[2010] NSWCCA 227

Sexual offencesAssault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: COLE v R [2010] NSWCCA 227
Court: NSW Court of Criminal Appeal
Date: 8 October 2010
Judge(s): Basten JA; Hall J; Latham J

Background

The applicant pleaded guilty in the District Court to two offences arising from events on 30 July 2008. He had entered a woman's home while suffering from paranoid delusions, believing he was being followed by government operatives. Once inside, he detained the victim (binding and blindfolding her while her daughter lay on the bed beside her) and then committed an act of aggravated sexual intercourse without consent in another part of the house, with the aggravating factor being that he caused actual bodily harm by tying the victim's wrists behind her back.

The sentencing judge imposed a fixed term of five years for the detention offence and, for the sexual assault, a non-parole period of ten years with a balance of term of four years. The second sentence was accumulated on the first by two years, producing an effective mandatory custody period of twelve years and an overall term of sixteen years. The sentencing judge expressly declined to find special circumstances.

The applicant sought leave to appeal against sentence on multiple grounds, contending the sentencing judge had failed to give proper weight to his mental illness and contrition, had erred in refusing to find special circumstances, and had imposed a manifestly excessive sentence for the sexual assault.

  • Whether the sentencing judge failed to properly account for the applicant's mental illness as a mitigating factor
  • Whether the sentencing judge gave inadequate consideration to the applicant's contrition
  • Whether the sentencing judge erred by declining to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether a technical error arose from the way the non-parole period and balance of term were calculated in light of the accumulation
  • Whether the sentence for the sexual assault offence was manifestly excessive

Decision

Mental illness and contrition. The Court found no error in the sentencing judge's treatment of the applicant's mental illness. While the paranoid delusions explained why the applicant entered the home, the subsequent offending involved deliberate acts that could not be fully attributed to his illness. The Court similarly found the sentencing judge had adequately, if briefly, addressed the applicant's contrition, noting that expressions of remorse from a person with the applicant's psychiatric history required careful evaluation.

Special circumstances and the technical error. The Court identified a technical difficulty: by declining to find special circumstances but imposing a balance of term of four years against a ten-year non-parole period, the sentencing judge produced a ratio that did not strictly comply with s 44(2) of the Crimes (Sentencing Procedure) Act 1999, which requires the balance of term to be no more than one-third of the non-parole period unless special circumstances are found. The Court also noted that s 44 operates on a sentence for an individual offence, not on a cumulative period of imprisonment, citing Hejazi and Sendy. The Crown conceded error but submitted it had benefited the applicant; the Court treated this argument with some scepticism but ultimately considered whether a less severe sentence was warranted in law.

Manifest excess. The Court was not persuaded that the ten-year non-parole period for the sexual assault was manifestly excessive. It was described as a heavy sentence, but consistent with sentences upheld by the Court in comparable matters, including R v Oloitoa [2007] NSWCCA 177, where a non-parole period exceeding ten years was held warranted for an aggravated sexual assault involving a home invasion. The applicant's significant prior criminal history, including repeated reoffending shortly after release on parole, weighed against a reduction.

Forensic patient status. The applicant was at the time of appeal a forensic patient subject to Mental Health Review Tribunal oversight. The Court noted this circumstance was largely speculative as to its practical effect on release and could not influence the statutory sentencing exercise in respect of the non-parole period.

Orders Made

  • Leave to appeal is granted.
  • The appeal is dismissed.

Key Takeaways

  • Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 operates in relation to the sentence imposed for each individual offence; it does not apply to an aggregate or cumulative period of imprisonment resulting from the accumulation of two sentences.
  • Where a sentencing judge declines to find special circumstances but nonetheless imposes a balance of term that exceeds one-third of the non-parole period, a technical error arises, even if the error may have operated in the offender's favour.
  • Mental illness that explains why an offender came to be in a situation does not necessarily mitigate the deliberate acts of serious offending committed within that situation; the Court of Criminal Appeal confirmed this distinction in assessing the weight given to the applicant's paranoid delusions.
  • An offender's status as a forensic patient subject to ongoing Mental Health Review Tribunal supervision is a speculative circumstance that cannot drive the sentencing discretion on special circumstances.
  • In dismissing the appeal, the Court affirmed that a non-parole period of ten years for aggravated sexual intercourse without consent involving a home invasion and physical harm to the victim was within the range of appropriate sentences, particularly where the offender had a history of violence and repeated reoffending on parole.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 39
- Crimes Act 1900 (NSW), ss 61, 86(1)

Cases:
- Hejazi v The Queen [2009] NSWCCA 282
- Sendy v The Queen [2009] NSWCCA 299
- Arnaout v R [2008] NSWCCA 278; 191 A Crim R 149
- Marinellis v Regina [2006] NSWCCA 307
- R v Oloitoa [2007] NSWCCA 177
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Veen (No 1) v The Queen [1979] HCA 7; 143 CLR 458
- Veen (No 2) v The Queen [1988] HCA 14; 164 CLR 465
- R v Engert (1995) 84 A Crim R 67
- R v Way [2004] NSWCCA 131
- Thomas (1992) A Crim R 269