Lo Castro v The Queen [2011] NTCCA 1

 

PARTIES:                                         JOHANN SEBASTIAN LO CASTRO

 

                                                         v

 

                                                            THE QUEEN

 

TITLE OF COURT:                           COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

 

JURISDICTION:                               CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          CA 23 of 2010 (20942611 & 20942617)

 

DELIVERED:                                   18 FEBRUARY 2011

 

HEARING DATES:                           2 FEBRUARY 2011

 

JUDGMENT OF:                              RILEY CJ, SOUTHWOOD & BARR JJ

 

APPEALED FROM:                          MARTIN (BR) CJ

 

CATCHWORDS:

CRIMINAL LAW- sentence – fresh evidence - whether evidence of real significance was not brought to the attention of the learned sentencing Judge resulting in a miscarriage of justice – whether relationship between the victim and the appellant was a mitigating circumstance– whether learned sentencing Judge failed to give weight to the principle of totality– whether learned sentencing Judge failed to take into account the appellant’s subjective case - whether sentence manifestly excessive – appeal dismissed. 

 

Criminal Code s 411(4); Sentencing Act.

 

Cahyadi v The Queen (2007) 168 A Crim R 41; Pearce v The Queen (1998) 194 CLR 610, applied.

Fordham (1997) 98 A Crim R 359; Wiren v The Queen (1996) 5 NTLR 211, considered.

Damaso (2002) 130 A crim R 206; Murphy v The Queen [2005] NTCCA 15, followed.

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     W Terracini SC and J O’Sullivan

    Respondent:                                  M Thomas

 

Solicitors:

        Appellant:                                         Benjamin Archbold

Respondent:                                     Office of the Director of Public Prosecutions

 

Judgment category classification:    B

Judgment ID Number:                       Ril1102

Number of pages:                             18


IN THE COURT OF CRIMINAL APPEAL

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Lo Castro v The Queen [2011] NTCCA 1

No. CA 23 of 2010 (20942611 & 20942617)

 

 

                                                     BETWEEN:

 

                                                     JOHANN SEBASTIAN LO CASTRO

                                                         Appellant

 

                                                     AND:

 

                                                     THE QUEEN

                                                         Respondent

 

CORAM:     RILEY CJ, SOUTHWOOD AND BARR JJ

 

REASONS FOR JUDGMENT

 

(Delivered 18 February 2011)

 

The Court:

[1]       On 22 July 2010 the appellant was sentenced to a total period of imprisonment of 13 years with a non-parole period of 8 years for a number of offences committed against two victims.  He now appeals against the sentences on various grounds including that they were manifestly excessive.

[2]       The victims were identified in the sentencing remarks as Ms A and Ms B. There were two indictments and the proceedings in relation to Ms A were dealt with first.  There was a trial lasting approximately 8 days in the course of which both Ms A and Ms B gave evidence.  At the conclusion of the trial the appellant was found guilty by the jury and then convicted of five offences of unlawful assault upon Ms A and three counts of having had sexual intercourse with Ms A without her consent.  Whilst the jury was deliberating in relation to the first trial, the trial concerning Ms B commenced.  The appellant was arraigned and a jury was empanelled.  However, before the trial proceeded further the appellant requested to be re-arraigned and he pleaded guilty to four counts of unlawful assault relating to Ms B, and one count of attempting to have sexual intercourse with Ms B without her consent.  He was convicted on each count.

[3]       The appellant had a relationship with Ms A and, separately, with Ms B. In each of those relationships he demonstrated what a psychiatrist subsequently called "paranoid jealousy and excessive desire for control over his partners’ lives".  Comment was made by the psychiatrist regarding the extent of the drug use of the appellant which was described as "extraordinary" and which led to "a stimulant induced paranoid syndrome of suspicious jealousy".  The psychiatrist observed that "the extreme nature of the aggressive, abusive, jealous and controlling behaviours he exhibited in his two relationships" were a "function of heavy amphetamine and cocaine abuse".

The sentences in relation Ms A

[4]       The learned sentencing Judge described the relationship between the appellant and Ms A as being a relationship of extremes in which the appellant was at times loving and affectionate and then obsessively jealous, suspicious and aggressive.  He was also violent.  Ms A was described as a person of fragile personality who was vulnerable to the control of the appellant.  It was an "on and off" relationship where, because of her vulnerability and her susceptibility to the abuse, influence and control of the appellant, Ms A believed she was partly at fault for problems within the relationship.  His Honour recounted examples of the behaviour of the appellant.  It is not necessary to repeat those findings other than to note that the conclusion reached by his Honour that the behaviour revealed "extraordinary jealousy and obsessive behaviour that at times bordered on the bizarre" has not been challenged.  As a consequence of the conduct of the appellant Ms A suffered psychologically and spent time in a psychiatric ward.

[5]       The first offence of which the appellant was found guilty (Count 2) was an assault in which the appellant angrily confronted Ms A and held her arm, hurting her.  His Honour convicted the appellant without further penalty.

[6]       The second offence (Count 3) arose out of an angry confrontation with Ms A where the appellant punched a wall and was then seen pulling her downward by her hair until she was nearly on the ground.  He then let her go and spat in her face.  Ms A suffered some pain and significant humiliation.  A conviction was recorded and a fine of $750 was imposed.

[7]       The third offence (Count 6) occurred when the appellant attended at the home of Ms A.  She had been in the shower and came to the door with a towel wrapped around her.  The appellant grabbed her by her hair pulling her towards the ground.  He then dragged her along the ground by her hair for a short distance.  The towel was removed as she was dragged along the ground, leaving Ms A naked.  The assault ended when others intervened.  The appellant was sentenced to imprisonment for three months for this offence.

[8]       The next offence (Count 9) was an assault which occurred on 2 November 2008 and which was the first in a series of offences committed on that occasion.  The sentencing Judge described the events that followed as a “sustained, violent and demeaning attack upon Ms A".  The appellant attended at the residence of Ms A. He was unwelcome but gained entry by claiming to need to use the toilet. The appellant promised to then leave however did not do so.  When he emerged from the toilet he did not replace his pants.  He verbally abused Ms A.  He dragged her to a bed and threw her upon it.  She was kicking out and screaming.  The appellant bit her on the right calf causing pain, raised skin and bruising. He placed her head under a pillow and then punched her head through the pillow.  Those actions constituted an assault for which he was sentenced to imprisonment for six months to be served cumulatively upon the sentence imposed in relation to count 6.

[9]       The appellant was intent on having sexual intercourse but Ms A resisted.  The appellant turned her onto her stomach and succeeded in penetrating her anus with his penis to a small extent.  This was the first offence of sexual intercourse without consent (Count 10).  The appellant was sentenced to imprisonment for a period of seven years in relation to this offence.  The sentence was directed to be served cumulatively upon the sentence imposed on count 9.

[10]     The second offence of sexual intercourse without consent (Count 11) followed immediately upon the first.  The victim was screaming out for the appellant to stop and he told her to "shut up" and then forced his penis into her vagina.  The appellant was sentenced to a term of imprisonment of eight years to be served cumulatively upon the sentence imposed in relation to count 9 but concurrently with the sentence of seven years imposed on count 10.

[11]     On the same occasion the appellant grabbed Ms A around the throat and squeezed sufficiently hard to prevent her from breathing, causing her to make a gargling noise and leaving a mark on her throat (Count 12).  He was sentenced to imprisonment for nine months to be served concurrently with the sentence imposed on count 11.

[12]     Finally, in relation to Ms A, the appellant was convicted of a further offence of sexual intercourse without consent (Count 15). Following the offending which has been described, the appellant left the room.  The learned sentencing Judge described this offence in the following terms: 

I accept that in some unknown way you forced her back into the bedroom and onto the bed where you committed the crime of sexual intercourse without consent charged in count 15 of which the jury convicted you.  After Ms A was on the bed, you behaved in a particularly insulting and demeaning way.  Your penis was flaccid and you slapped it against Miss A’s vagina saying "See.  You’re such an ugly C", a four letter word, "I can't get hard anyway".  After a couple of minutes, your penis began to get hard and you inserted it into Miss A’s vagina.  She was so exhausted that she could not fight you any more.  She was telling you that she did not want intercourse and just to go, but you kept abusing her in a particularly crude and demeaning way.

The appellant was sentenced to imprisonment for eight years for this offence.  It was directed that three years and three months of the sentence was to be served cumulatively upon the sentence imposed in relation to count 11.

The sentences in relation to Ms B

[13]     At a time following the attack on Ms A in November 2008 the relationship ceased. It recommenced in about April or May 2009 and continued through until August 2009 when it again ceased. 

[14]     In January 2009 the appellant commenced a relationship with Ms B. This relationship continued at the same time as his relationship with Ms A and was accompanied by obsessive jealousy and aggressive, abusive and controlling behaviour on the part of the appellant towards Ms B.  The learned sentencing Judge described the conduct as "strikingly similar" to the appellant’s behaviour towards Ms A.

[15]     The appellant pleaded guilty to five offences in relation to Ms B.  The first offence (count 1) occurred at her home when the appellant became angry and abusive.  He threatened Ms B with his fists and then head-butted her twice to the forehead.  He then grabbed her by the shoulder causing her to stumble and he pushed her in the chest area.  The incident continued for about half an hour.  A sentence of imprisonment for one month was imposed in relation to this assault.

[16]     The second offence (count 2) occurred on a different occasion when, in a public place, the appellant pushed Ms B to her shoulder causing her to lose her balance and stumble backwards.  The appellant was then calmed down by a friend.  No penalty was imposed in relation to that count.

[17]     The third offence (count 3) occurred when the appellant and Ms B were at a restaurant.  An argument developed and Ms B left the restaurant.  The appellant followed her and pushed into her with his chest and hands causing her to stumble backwards.  Again another person intervened.  A fine of $750 was imposed in relation to this offence.

[18]     The fourth offence (count 4) occurred at the home of Ms B.  The appellant arrived and forced a kiss upon her, biting her lip as he did so.  A short time later the appellant told Ms B that they were going to have sex and he grabbed her by both wrists and shoved her down a hallway.  She was calling out for him to stop.  He pushed her against a closed door with sufficient force to cause it to open.  He then threw her onto a bed and pinned her body to the bed.  He raised a clenched fist to her face.  He grabbed a pillow and forced it onto her face.  She found it hard to breathe and feigned not being able to breathe.  The pillow was removed but then immediately replaced.  This occurred five or six times during the course of the struggle.  The appellant bit Ms B on the chest.  The appellant was fined $750 in relation to this offence.

[19]     The final offence (count 5) was of attempted sexual intercourse without consent.  It followed immediately upon the assault described above.  The appellant ripped Ms B’s underwear off and then exposed his penis.  She was crying and pleading with him to stop.  He tried to prise her legs apart and eventually succeeded.  He smelled the area of her vagina and then slapped his flaccid penis on the inside of her leg saying "you don't turn me on".  The appellant then left the room.  Ms B suffered bruises to her wrists, arms, chest, right inner thigh and left knee.  She also received bruising to her jaw.  The appellant was sentenced to imprisonment for four years and six months in relation to this offence.

[20]     The learned sentencing Judge ordered that some of the sentences be served concurrently with the end result of a total sentence of imprisonment of 13 years.  His Honour fixed a non-parole period of eight years.

The grounds of appeal

[21]     The appellant has appealed on five grounds as follows:

(a)      evidence of real significance to the sentence proceedings was not brought to the attention of the sentencing Judge as a result of which a miscarriage of justice occurred;

(b)     the learned sentencing Judge, in his discretion, ought to have made counts 15 and 11 concurrent;

(c)     the learned sentencing Judge failed to attach any weight to the relationship between the parties;

(d)     the learned sentencing Judge failed to adequately take into account the appellant's subjective case;

(e)     the sentence imposed was manifestly excessive.

Fresh evidence

[22]     The appellant sought to lead fresh evidence which, it was argued, demonstrated that the relationship between the appellant and Ms A did not cease for any significant period after the offending which occurred on 2 November 2008.  It was submitted that the fact the relationship continued was evidence that the trauma Ms A in fact suffered was less severe than that described by Ms A in her victim impact statement; accordingly, a material factor to the sentencing exercise was not brought to the attention of the learned sentencing Judge.

[23]     Generally before fresh evidence will be received it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice.[1]  It may be admitted where the "evidence has real significance” to the sentencing proceedings.  The court may receive fresh or new evidence where the interests of justice require that course.

[24]     At its highest the fresh evidence would place Ms A in the appellant's delivery vehicle, with the appellant, on 7 November 2008 and also establish that Ms A assisted the appellant in invoicing customers on that day.  It does not provide any insight into her appearance on the day, her apparent emotional or mental state, or her actual state of mind.

[25]     In the course of the sentencing remarks the learned sentencing Judge described Ms A as a young person with a fragile personality, which made her vulnerable to the abuse, influence and control of the appellant.  His Honour found that the appellant exploited that vulnerability and concluded that Ms A was lacking in self-esteem and reached a point where she believed that no one but the appellant would want her.  She also believed that she was partly at fault for the problems within the relationship because she kept going back to the appellant.

[26]     At trial the evidence of Ms A was that she viewed the relationship with the appellant as being "over" from 2 November 2008 until May 2009 or possibly a little earlier. She did not say that she had no contact with the appellant in that period or that she did not accompany him in the course of his deliveries.  The relationship then commenced again and continued through to August 2009. 

[27]     The remarks of the learned sentencing Judge were, relevantly, as follows:

After your attack upon Ms A in November 2008, the relationship with Ms A was off until about April or May 2009 when it recommenced after you called Ms A and said you missed her and would change. Ms A described the relationship when it resumed as "perfect".  You said you were sorry and, in her words, you were "really nice".  No further acts of violence against Ms A occurred and the relationship ended in August 2009 by mutual agreement.

[28]     The sentencing remarks reflected that the relationship was "off" after the events of 2 November 2008, but made no reference to whether contact continued from 2 November 2008 to April or May 2009.  Significantly, however, sentencing was on the basis that the appellant did nothing untoward to Ms A after 2 November 2008.

[29]     The limited evidence of contact between Ms A and the appellant on 7 November 2008, five days after the serious offences committed on 2 November, says nothing about the relationship as such.  It is not possible to conclude that the relationship continued without interruption after 2 November, or that the relationship, having been interrupted, resumed on or prior to 7 November, and not in the way the evidence establishes happened in April or May 2009.

[30]     In her victim impact statement signed on 21 January 2010, Ms A described her physical injuries and the emotional impact upon her as at that date.  Even if all the evidence, including for present purposes the proposed fresh evidence, suggested that the victim impact was not significant as at 7 November 2008 (and that is not the case), it would be illogical to suggest on that basis that as at 21 January 2010 Ms A had not suffered the trauma she described in her victim impact statement.

[31]     In all the circumstances it is impossible to conceive that the fresh evidence, had it been put before the learned sentencing Judge, would have had any significance at all on his Honour’s sentencing considerations.  It could not be said to have had "real significance to the sentencing proceedings".  There has been no miscarriage of justice by the evidence not being placed before the learned sentencing Judge, and there is no other basis on which the interests of justice require that it be admitted.  The evidence will not be admitted.  This ground of appeal must fail.

Concurrency between counts 11 and 15

[32]     The appellant complains that the learned sentencing Judge ought to have made the sentences in relation to counts 11 and 15 concurrent. The offences occurred on 2 November 2008.  The appellant had attended at the home of Ms A and gained entry under the pretext that he needed to use the toilet.  He promised that he would then immediately leave.  On emerging from the toilet he verbally abused Ms A saying that if others could have sexual intercourse with her so could he.  He dragged her to a bed and threw her on it.  He assaulted her as described in relation to count 9 above including by biting her and punching her in the head through a pillow. He then proceeded to have sexual intercourse with her without her consent on three occasions which are reflected in counts 10, 11 and 15.  It was submitted that the offences occurred at approximately the same time and were part of a single episode of criminality with common factors.

[33]     It is apparent from the sentencing remarks that his Honour made the sentences in relation to counts 10 and 11 wholly concurrent and the sentence for count 15 partially concurrent with that for count 10.  In dealing with count 15 his Honour observed that:

It was an act of penile intercourse against her strong objections and accompanied by offensive verbal abuse.  It occurred at a time when you well knew that you had violated Ms A in a demeaning and offensive way in the course of the sustained and violent attack upon her.  I impose a sentence of eight years imprisonment of which three years and three months is to be served cumulatively on count 11.

[34]     As was observed by Howie J in Cahyadi v The Queen[2] there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively.  His Honour stated:

The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence?  If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect a total criminality of the two offences.  If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences.  This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality.

[35]     The conduct to which count 15 related was an offence which, whilst it followed upon the other offences, was separated by a break in the sexual offending. In the intervening period Ms A was subjected to violence by the appellant.  Thereafter she found herself in a bedroom and he again sought to have sexual intercourse with her. His conduct was described by the learned sentencing Judge to be "demeaning and offensive" towards the victim and a "sustained and violent attack upon her".

[36]     All of the offending which occurred on 2 November 2009 was part of an ongoing violent course of conduct towards the victim over a discrete period.  In those circumstances it is plain that it would be wrong to punish the appellant twice for the commission of elements of the offences that are common to the various offences committed.  As was said by members of the High Court (McHugh, Hayne and Callinan JJ) in Pearce v The Queen:[3]

[T]he punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn.  Often those boundaries will be drawn in a way that means that offences overlap.  To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

[37]      In that case their Honours noted that:

A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

[38]     Each of the sexual offences committed on 2 November 2009 were particularly serious and contributed to the total criminality involved.  It was important for the learned sentencing Judge to ensure that an appropriate sentence was imposed for each of the offences and that the total sentence adequately reflect the totality of criminality involved. 

[39]     In our opinion his Honour did not err in this regard. Whilst a degree of concurrency was called for, that was adequately reflected in the structure of the sentences imposed by the learned sentencing Judge.  Importantly the effective sentence in relation to counts 9, 10, 11, 12 and 15 was imprisonment for a period of 11 years and nine months and, in our opinion, that sentence appropriately reflected the totality of criminality involved.  This ground of appeal is dismissed.

Failure to give weight to the relationship between the parties

[40]     It was submitted on behalf of the appellant that the learned sentencing Judge failed to attach any weight to the relationship between the parties.  It was not in dispute that both Ms A and Ms B had each been in a relationship with the appellant. 

[41]     In relation to Ms A, it was emphasised that she returned to the relationship after the offending had occurred and that she described the relationship as being, for a time, "perfect".  It was also pointed out that the relationship had previously involved sexual experimentation including anal sex.

[42]     In his sentencing remarks the learned sentencing Judge addressed the relationship between the appellant and each of his victims in great detail.  Whilst the fact that an offender had been in a relationship with his victim prior to the offending may be a mitigating factor in some cases,[4] this will not be so in all cases.  Much will depend upon the nature of the relationship and the circumstances of the offending in each case.

[43]     In the present case the learned sentencing Judge paid close attention to the nature of the relationship between the appellant and Ms A which included behaviour on the part of the appellant which was described as "extraordinary jealousy and obsessive behaviour that bordered on the bizarre".  There were many examples of the conduct of the appellant available to demonstrate the validity of that conclusion.  We agree with the submission of the respondent that there is nothing in the relationship that mitigates the offending.  In our opinion his Honour did not err in the way in which he dealt with the relationship between Ms A and the appellant.

[44]     The complaint regarding the relationship between the appellant and Ms B was less specific.  Again we do not find any error on the part of his Honour in the way in which he dealt with this relationship.

Failure to adequately take into account the appellant's subjective case.

[45]     The appellant included a ground of appeal which simply stated that the learned sentencing Judge failed to adequately take into account the appellant's subjective case.  This ground was not addressed in the written submissions and there was no discussion of it before the Court.  A consideration of the sentencing remarks reveals that his Honour did deal with the subjective case of the appellant at length and appropriately.  This ground of appeal is dismissed.

Manifest excess

[46]     The principles applicable to such an appeal are well known. It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error and the appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is excessive. It interferes only if it be shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing Judge said in the proceedings or the sentence itself may be so excessive as to manifest such error. In relying upon this ground it is incumbent upon the appellant to show that the sentence was not just excessive but manifestly so. He must show that the sentence was clearly and obviously and not just arguably excessive.

[47]     It was submitted on behalf of the appellant that the sentence imposed in relation to the offence of attempted sexual intercourse with Ms B, who was the girlfriend of the appellant at the time, was excessive.  It was also submitted that the sentence imposed for sexual intercourse without consent on Ms A was excessive and was a sentence reserved for greater levels of criminality.

[48]     We were taken by both counsel to various cases in order to compare other sentences imposed by other courts with those imposed in these instances.  We did not find this exercise particularly helpful as the matters referred to were small in number and readily distinguishable from the sentences under consideration in these proceedings.  It is sufficient to note that we do not regard the identified sentences as being manifestly excessive nor do we regard the total sentence as being other than appropriate in all the circumstances.

[49]     The appeal is dismissed.

-----------------------------



[1] Fordham (1997) 98 A Crim R 359 at 377.

[2] Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].

[3] Pearce v The Queen (1998) 194 CLR 610 at 623.

[4] Wiren v The Queen (1996) 5 NTLR 211 and the cases referred to therein.