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District Court 29 November 2013

R v Caleb James O'CONNOR aka John COBLE

[2013] NSWDC 272

Sexual offencesAssault & violenceDomestic & family violence

Citation: R v Caleb James O'Connor aka John Coble [2013] NSWDC 272
Court: District Court of New South Wales
Date: 29 November 2013
Judge(s): Judge Haesler SC

Background

Following a jury trial at Campbelltown District Court in May 2012, the offender was convicted of two counts of attempted choking with intent to commit an indictable offence, and one count of aggravated sexual intercourse without consent. The offences occurred on 19 February 2011, when the offender and the victim (referred to throughout as AF) were in an intimate relationship.

The facts, as found by the jury, were serious. After AF refused the offender's sexual advances and asked him to leave, he choked her on two separate occasions during the same night, rendered her unconscious, and then bound her hands, gagged her, and had non-consensual sexual intercourse with her. AF presented to police bleeding and distressed; medical examination confirmed bruising, petechial haemorrhage consistent with strangulation, ligature marks, and vaginal redness.

Shortly after conviction but before sentence, the offender suffered a severe brain injury while in custody. That injury, and its consequences for his capacity to rehabilitate and the impact of continued incarceration on his condition, became a central and unusual consideration in the sentencing exercise.

  • What sentences were appropriate for two counts of attempted choking under s 37 of the Crimes Act 1900 and one count of aggravated sexual intercourse without consent under s 61J?
  • How should the standard non-parole period of 10 years for the s 61J offence inform the sentence?
  • How should Form 1 matters (including a break and enter and breach of an apprehended violence order) be taken into account in the sentencing instinctive synthesis?
  • Whether the offender's catastrophic brain injury, acquired in custody after conviction but before sentence, constituted exceptional circumstances capable of reducing an otherwise significantly higher sentence.
  • How principles of totality, accumulation, and concurrence applied to the three convictions.

Decision

Judge Haesler SC applied the standard non-parole period for the s 61J offence as a statutory benchmark, noting that the offence fell at the upper end of the range of seriousness. The objective gravity was high: the offender deprived the victim of her liberty before committing the offence, there were two separate acts of choking, the victim was bound and gagged, and the offender laughed and made death threats throughout. The Form 1 matters, particularly the break and enter, were taken into account in fixing the s 61J sentence by way of instinctive synthesis, consistent with the approach confirmed in Markarian v The Queen and reaffirmed in Abbas Bodiotis Taleb and Amoun v R.

The central and exceptional feature of the sentencing was the brain injury the offender sustained on 23 May 2012, just days after his conviction. Medical evidence established that the injury had left him with permanent and significant cognitive impairment. His prospects of meaningful rehabilitation in custody were assessed as poor, whereas rehabilitation outside custody, with appropriate support, was considered more achievable. The court accepted that continued incarceration posed particular risks to his health and welfare that would not ordinarily affect a prisoner.

Judge Haesler SC was careful to note the profound tension between the gravity of the offending and the reduced sentence ultimately imposed. His Honour stated expressly that the sentence he would otherwise have imposed would have been significantly more severe, and urged that the victim should not equate the punishment actually imposed with any assessment of the seriousness of what was done to her. The reduction was grounded in established principles recognising that, where continued imprisonment poses disproportionate hardship or where an offender's condition fundamentally alters the nature of incarceration, those factors may justify departure from what would otherwise be an appropriate penalty.

The court imposed individual sentences for each count and then constructed an aggregate sentence with an aggregate non-parole period, ensuring that the total reflected the principles of totality and did not result in a crushing sentence inconsistent with the offender's circumstances. Some concurrency was applied across the s 37 counts given they arose from the same night, with partial accumulation on count 3.

Orders Made

  • Count 1 (s 37 attempted choking): four years imprisonment
  • Count 2 (s 37 attempted choking): four years imprisonment
  • Count 3 (s 61J aggravated sexual intercourse without consent, taking into account Form 1 matters): seven years imprisonment with a non-parole period of three years
  • Aggregate sentence: nine years imprisonment with an aggregate non-parole period of three years and ten months, commencing 31 January 2012 and expiring 30 November 2015
  • Eligible for release to parole: 30 November 2015
  • Total sentence to expire: 30 January 2021
  • Local Court matter withdrawn and dismissed; all other Form 1 matters taken into account

Key Takeaways

  • A catastrophic and permanent brain injury sustained in custody between conviction and sentence can constitute exceptional circumstances justifying a materially reduced sentence, where medical evidence supports the finding that continued imprisonment disproportionately affects the offender's health and substantially alters the rehabilitative calculus.

  • Form 1 matters are not separately punished, but they are a legitimate factor in the instinctive synthesis and may operate to increase the sentence that would otherwise be appropriate for the primary offence, as confirmed by the High Court in Markarian and the NSW Court of Criminal Appeal in Abbas Bodiotis Taleb and Amoun.

  • The standard non-parole period under s 61J of the Crimes Act 1900 serves as a statutory reference point reflecting middle-range objective seriousness, and the sentencing court must make a record of its consideration of that benchmark.

  • Where a sentence is reduced from what it would otherwise have been due to extraordinary personal circumstances, the District Court considered it appropriate to state explicitly the severity of the sentence that would otherwise have been imposed, so that the victim and the community understand the court's assessment of the objective gravity of the offending.

  • Totality principles require that accumulated sentences across multiple serious counts not produce a result so crushing as to be unjust, particularly where exceptional mitigating circumstances already require departure from the otherwise applicable range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37, 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Abbas Bodiotis Taleb and Amoun v R [2013] NSWCCA 115
- Markarian v The Queen (2005) 228 CLR 357
- Pearce v The Queen (1998) 194 CLR 610
- Munda v Western Australia [2013] HCA 38
- Bugmy v The Queen (1990) 169 CLR 525
- R v Burrell (2006) 114 A Crim R 202
- R v Clinch (1994) 72 A Crim R 301
- R v Cutrale [2011] NSWCCA 214
- R v Engert (1995) 84 A Crim R 67
- Higgins v R [2002] NSWCCA 407
- Hopkins v R [2004] NSWCCA 105
- Jackson [2010] NSWCCA 162
- R v Knight (2005) 155 A Crim R 252
- R v L; R v BJW (2000) 112 A Crim R 1
- R v MA (2004) 145 A Crim R 434
- M A K v R [2006] NSWCCA 381
- R v MW [2007] NSWCCA 291
- R v Nykolyn [2012] NSWCCA 219
- Portolesi v R [2012] NSWCCA 157
- R v Previtera (1997) 94 A Crim R 76