A.J.B. v Regina

Crimes Act 1900 - ss 76 (now repealed), 61E(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 44 Parole of Prisoners Act 1966 Sentencing Act 1989

R v Moon (2000) 117 A Crim R 497 R v MJR (2002) 54 NSWLR 368 R v Baxter (NSWCCA, unreported, 26 May 1994) R v Maclay (1990) 19 NSWLR 112 R v O'Brien [1984] 2 NSWLR 449 CASES CITED: R v Slater [2003] NSWCCA 178 Tatana v R [2006] NSWCCA 398 R v EGC [2005] NSWCCA 392 R v PLV (2001) 51 NSWLR 736 R v Portolesi [1972] 1 NSWLR 105 Power v The Queen (1974) 131 CLR 623 Deakin v The Queen (1984) 58 ALJR 367

COUNSEL: J. Girdham - Crown P. Byrne SC - Applicant

SOLICITORS: S. Kavanagh - Crown Alan Segal - Applicant

IN THE COURT OF CRIMINAL APPEAL 2006/2505

ADAMS J HOWIE J PRICE J

Judgment 1 ADAMS J: I agree with the judgment of Howie J and the orders proposed by his Honour. 2 HOWIE J: The applicant was before the District Court for sentence on five counts of indecent assault to which he had earlier pleaded guilty in the Local Court. In addition he asked the sentencing Judge, Berman DCJ, (the Judge) to take into account four other offences of a similar nature on a Form 1. The applicant was sentenced on 17 March 2006 to an overall term of imprisonment of 4 years with a non-parole period of 3 years. The applicant is eligible to be released to parole on 8 March 2009. He seeks leave to appeal against those sentences. 3 The offences were committed over a period of three years from 1979 against the applicant's stepdaughter. She was aged between six and a half and ten years at the time of the offending. Each of the offences was an indecent assault with a child under 16 years contrary to either s 76 of the Crimes Act, now repealed, or s 61E(1) of that Act. Each carried a maximum penalty of imprisonment for six years. 4 The victim complained to her mother about the applicant's conduct in 1982. The applicant as a result sought treatment from a psychiatrist and the family remained together for another ten years without any further misconduct by the applicant toward the victim. The victim complained again to a police hotline in 1993 but there was no response. Ultimately she made a complaint in 2005 that resulted in the arrest of the applicant in July of that year. He initially denied the conduct. However, he pleaded guilty before the Local Court and was committed for sentence to the District Court. The Judge gave him the benefit of a discount of sentence of 25 per cent for the utilitarian benefit of the pleas of guilty. 5 The conduct that gave rise to four of the offences for which he was sentenced involved the applicant simulating sexual intercourse with the complainant by rubbing his erect penis between her legs and on her vagina while they were both naked from the waist down. On each occasion he ejaculated but once he was wearing a condom. The fifth offence related to an incident when the applicant fondled the complainant's vagina beneath her panties while they were in the family vehicle. The offences on the Form 1 involved sexual assaults committed on different occasions and including simulated intercourse without ejaculation, fondling the complainant's vagina, fondling her breasts, and requiring the complainant to rub cream on his penis. The final assault occurred after the complainant had made complaint to her mother. Throughout the period of the offences the applicant was married to the complainant's mother and the complainant treated him as her father. After the initial complaint the applicant attended a psychiatrist, Dr Dignam, in 1982 for therapy. He diagnosed the applicant as having an anxiety neurosis and a personality disorder. 6 The applicant was aged 60 years at the date of sentence, having been born on 23 November 1946. He has no criminal record. He was living on the Sunshine Coast in Queensland with his wife and two children. This was his fourth long-term relationship and commenced in 1998. His wife suffers from Sjogrens Syndrome, an autoimmune disease. The applicant is a retired fireman. There was in evidence a pre-sentence report that set out his background. There was little of relevance other than that the applicant stated that his employment as a fireman led to traumatic incidents that resulted in his use of alcohol to cope with stress. This was particularly so after he attended the Luna Park fire in 1978. The applicant was in receipt of a pension and regular payments of compensation from the NSW Fire Service. The applicant expressed remorse for the offending to the officer preparing the report but was unable or unwilling to recall the details of the offences. 7 There was in evidence a report from Dr Westmore, a psychiatrist, dated February 2006. When asked about the offences, the applicant told Dr Westmore that he was drinking heavily at the time and having difficulties with his wife who was too concerned with the problems of her neighbours. He said that the victim would sit on his lap and it led him "to do these things". The applicant acknowledged that the behaviour was wrong and would have damaged the victim. He said that he did not find her sexually attractive but it was a release for him. The applicant told the psychiatrist that he had been drinking alcohol heavily for about 10 years until he sought counselling and attended AA. He was drinking only lightly at the time of the interview. Dr Westmore diagnosed the applicant as suffering from chronic symptoms of depression at the time of the offending. He did not find him to be a paedophile. He thought his risks of re-offending were negligible to non-existent and his prognosis was generally good. 8 There were letters from the applicant's present wife and her daughter attesting to his good character. There was a report from a local medical practitioner outlining the condition of the applicant's wife and expressing the opinion that "it would be catastrophic to her if he was sentenced to custodial imprisonment". 9 The complainant read to the court a victim impact statement. 10 The Judge was aware of the difficulty in sentencing a person for offences committed many years before the date of sentencing. He was handed relevant authorities including R v Moon (2000) 117 A Crim R 497 and R v MJR (2002) 54 NSWLR 368. Mr Byrne SC, appearing for the applicant, addressed at length on the relevant principles. However, he conceded that the Judge's discretion was broad and that "it is not a case….where there is any particular disposition that must be resorted to in the circumstances of this case". However, the submission was made that, had the applicant appeared before a court in 1982, "he would have stood a reasonable chance of obtaining a non-custodial sentence". 11 In R v MJR this Court was constituted by five Justices in order to determine differing views as to the approach to be taken in a case, such as this, where the offender is being sentenced a long time after the offences were committed. The issue to be decided was whether the sentencing court should take into account the sentencing practice as it was at the date of offending or whether it should sentence according to the practice at the time of sentencing. The Court determined that it should be the former where there was material indicating what that practice was, for example by way of statistical material. However, Sully J, with whom the other members of the Court generally agreed, stated:

[107] It is the case, as was frankly conceded by learned counsel for the applicant, that there does not exist a body of statistical material that is relevant to the applicant's case and that is similar in kind and in scope to the body of material, the existence of which was, as I respectfully think, crucial to the reasoning upon which the decision in Shore rests. In the absence of some such acceptable statistical material, this Court is constrained, in my opinion, to take the non-statistical approach which is described as follows by Howie J, (Fitzgerald JA concurring), in his Honour's judgment in Moon [2000] 117 A Crim R 497 at 511 (70), (71). Howie J says, case citations omitted, and I respectfully agree:

"The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: ..................... , and be proportional to the criminality involved in the offence committed:....................... Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence. When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the Court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time." 12 The Judge in his remarks referred to this aspect of the sentencing task and stated:

"Authority which binds me suggests that I should attempt to determine what the sentencing pattern was for offences such as these in 1982 and sentence the offender accordingly. However, the authorities also recognise the difficulty that the task sometimes presents. There are no sentencing statistics put before me and I was left to rely on cases supplied by Mr Byrne SC who appeared for the offender. It is no criticism of Mr Byrne when I say that those cases did not establish any particular sentencing regime for offences of this nature. The paucity of cases provided by Mr Byrne, the fact that they concern different offences, the fact that the objective circumstances are very different to the present and the fact that they concern offenders with different subjective circumstances together result in a situation where no real assessment can be made as to what the pattern of sentencing was for the offences of this nature and offenders of this nature in 1982. Perhaps the most that can be said is that there was no requirements stated by the Court of Criminal Appeal that offences of this nature must necessarily result in full-time custody. I accept that proposition as a correct statement of the law." 13 The first ground of appeal contends that the Judge failed to apply the principles enunciated in MJR and, in particular, failed to adequately take into account that "it was not necessary in the circumstances of the applicant's case for a sentence of full-time custody to be imposed". It seems to me that this argument can only succeed on the basis that the only course open to his Honour was to impose a non-custodial sentence. Otherwise, if it is acknowledged that it was within his Honour's discretion to impose a custodial sentence, then there is no apparent error in anything the Judge said in the course of his sentencing remarks. 14 I would be prepared to accept that there was no statement of principle from this Court in 1982 that mandated a full-time custodial sentence for all offences of indecent assault against children where there was no penetration of the child: see R v Baxter (NSWCCA, unreported, 26 May 1994). But I am not prepared to accept that it follows that, had the applicant faced the District Court in 1982, "he would have stood a reasonable chance of obtaining a sentence of something less than full-time imprisonment". That submission is, in my opinion, complete conjecture. But in any event, even if it could be accepted as accurate, it does not necessarily follow that this judge had to impose a non-custodial penalty. These were serious offences of their kind committed in breach of a position of trust with a very young child. They might not have been of the most serious of their kind at the time when they were committed, given that the offence of indecent assault then included acts of penetration, but they were not far below given the age of the child and the nature of the acts committed. 15 The Judge found the motivation for the crimes in what the applicant told Dr Dignam by way of explanation for the offences, being that he was over-sexed and was forced by his wife's conduct into finding sex elsewhere. He also told the psychiatrist that he wanted to hurt his wife by molesting the daughter. The Judge found this motivation to be an aggravating factor in the offending. These explanations should be compared with what the applicant told Dr Westmore as summarised earlier in this judgment. 16 Ultimately the Judge concluded that a custodial sentence was called for. He stated:

"There is one fundamental rule of sentencing which applied just as much in 1982 as it does to this day. That is that the sentence imposed must reflect the objective gravity of the offender's conduct. When I apply this rule to the offences bearing in mind the maximum penalty and the range of conduct covered by the statutory offence I am satisfied that in each case fulltime custody is required………." 17 In my opinion, not only was it open to the Judge to make that finding, but it was the only appropriate finding to be made according to the approach accepted as correct in MJR. I believe that the offences warranted a sentence of full-time custody, whether considered by present sentencing standards or according to the standards in 1982, in order to denounce that type of conduct and for the purposes of general deterrence. The delay before the matters were finally reported to police was regrettable but understandable. It is one of the factors of this type of offending that the child is in the hands of others to take up his or her cause, to vindicate the child's rights and to redress wrongs committed against the child. The effect of delay upon a particular offender is a relevant factor but it did not justify a non-custodial sentence being imposed upon the applicant. 18 Therefore, I do not believe that the first ground is made out. 19 The second ground of appeal is that the Judge failed to have sufficient regard to the applicant's subjective case. Such a ground can usually only be determined by an assessment of the sentence imposed. Here it is argued that the Judge concentrated overly on negative aspects of the applicant's conduct after the complaints were made to the mother and gave insufficient weight to the lack of further offending. 20 The Judge referred to the fact that the applicant was apparently untruthful to Dr Dignam because the applicant led him to believe that there was a single episode of offending 18 months earlier whereas the offending had ceased only two weeks before the applicant saw the psychiatrist. Mr Byrne accepted in this Court that the applicant had not been truthful but it was argued that this was irrelevant in light of the fact that the applicant did admit to offending, did seek treatment and did not re-offend. 21 With respect to the Judge, I do not believe that it was significantly relevant, if relevant at all, that the applicant had lied to the psychiatrist about the timing and nature of his offending in the circumstances of this particular case. The simple fact is that he did do something to address his misconduct and he did not re-offend thereafter. But I do not think that a fair reading of the remarks indicates that the Judge gave undue emphasis to this aspect of the applicant's conduct in determining the appropriate sentence. The reference to the lies told to the psychiatrist seems largely to have been made as part of the Judge's recitation of the facts, even though in my view it had no relevance. Later in his remarks the Judge gave due acknowledgment of the lack of further offending. He stated:

"It is significant that there was a period of ten years in which the complainant and the offender lived together without the offender committing further offences. The offender's other wives I think have all had children and there is no suggestion that the offender has molested any of them in any way….."

The Judge also referred to the offences as "isolated aberrations in the offender's otherwise law abiding life". He noted that the delay since the offences were committed "has enabled the offender to demonstrate rather than just promise rehabilitation". 22 I do not find that anything in the remarks on sentence indicates that the Judge gave insufficient regard to the applicant's conduct and rehabilitation after the complaints came to notice in 1982. Whether the sentence imposed reflects that such a deficiency must have occurred is a matter I will consider shortly. 23 The third ground is that the Judge had insufficient regard to the report of Dr Westmore. There is no reference at all in the sentencing remarks to that report or anything that it contained. However, in my opinion, there was little in that report of such importance that a failure to refer to it should be seen as an error in the exercise of the sentencing discretion. There was no suggestion that the applicant was a paedophile and, therefore, Dr Westmore's finding in that regard was uncontroversial. As I have already noted, the Judge found the offending to be an aberration. Although Dr Westmore concluded that the applicant was depressed at the time of the offending, any weight to be given to that factor was countered by the reasons given by the applicant for committing the offences to Dr Dignam, which were, as the Judge found, matters of aggravation. In any event the offending took place over a considerable period of time and involved multiple acts of serious sexual activity with a young child. Those circumstances seem to indicate to me that less weight should be given to factors such as abuse of alcohol or "turmoil" in the applicant's life as an explanation for repeated and long term offending. The Judge accepted that the applicant was unlikely to re-offend and that his prospects of rehabilitation were good and these findings were consistent with those made by Dr Westmore. 24 I do not consider that the failure to refer to Dr Westmore's report, his findings or conclusions indicate that the sentencing discretion miscarried. 25 During submissions to this Court one matter was raised which ultimately resulted in a widening of the attack made upon the sentences imposed than was apparent in the three grounds filed prior to the hearing and which I have so far considered. The Judge had been asked to take into account that remissions would have been available to a person sentenced in 1982. The Judge refused to do so and, after noting that there was no authority on the question binding on him, said:

"If I was sentencing the offender in 1982 I would not take into account his entitlement for remissions. Why should I do so now? 26 There was no ground of appeal challenging this approach. However, in considering this issue other questions arose between the bench and counsel about how the Court goes about replicating the practice that existed in 1982 and, in particular, the fact that there is now a statutory regime governing the specification of the non-parole period which requires the finding of special circumstances to reduce a statutory proportionality between the non-parole period and the balance of the term that did not exist in 1982. As a consequence Mr Byrne sought, and was granted, leave to file further grounds of appeal and written submissions in support. 27 The first of the new grounds of appeal was that the sentence was manifestly excessive. It was unusual to say the least that no such ground had initially been relied upon. However that may be, both parties made further submissions to the Court after it reserved its decision. 28 The Judge indicated that he was giving a discount of 25 per cent for the utilitarian value of the plea. The fact that the overall sentence imposed is four years suggests that, without that discount, the overall sentence would have been 5 years and 4 months. Of course one curious result arising from the approach of dealing with the applicant according to sentencing practices that existed in 1982 is that he would not have under that practice received a discount of 25 per cent for his pleas. 29 However, it seems to me, notwithstanding due regard being paid to the discretion of the sentencing judge in a matter that presented no simple task, that such a starting point was manifestly excessive in what was an unusual case. It is not so much the fact that the offences occurred over 24 years ago that seems to place this case into a category of its own, because such delays while uncommon are not unknown, but rather the fact that, the offending having been brought to light, the applicant sought treatment and as a result and, most significantly, did not offend again. Over the period of time since offending the applicant had completely reformed and had moved onto other relationships without any suggestion of any similar conduct reoccurring. There is no error that I can discern in the sentencing remarks so far as the fixing of the overall head sentence is concerned. But it is one of those cases where my immediate reaction to the sentence was that it was too severe, given the delay and the applicant's reform. Having considered the sentencing remarks in detail and the arguments of counsel before this Court, I am convinced that my immediate reaction was correct. 30 I think that what I said in Moon at [81] is perhaps even more appropriate in the somewhat unusual circumstances of this case:

"…………In a case such as this 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. Although general deterrence is important it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the court." 31 In arguing that the sentence was excessive Mr Byrne raised the issue of whether this Court should take into account in determining what was the appropriate sentence to have been imposed in 1982 and the practices and principles that applied at that time the fact that remissions were then available to prisoners. There are many cases that indicate how the remission system operated and it is fair to say that, had the applicant been sentenced in 1982, he would, in all probability if not certainty, have received the benefit of a reduction of one third of his sentence. At this time remissions only applied to the head sentence and not to the non-parole period; see generally R v Maclay (1990) 19 NSWLR 112 as to the history and application of remissions. But I do not believe that it is appropriate for this Court to try to replicate, not only the sentencing practices of 1982, but also executive practices of that time in respect to the treatment of prisoners. I do not believe that this is what the decision in MJR requires. 32 I do not reach this conclusion for the same reason that the sentencing judge did. It is true that a sentencing court in 1982 did not take into account the existence of remissions, or ought not to have done so: R v O'Brien [1984] 2 NSWLR 449. But this was so that the sentence was not increased in order to counter the fact that remissions applied to it; R v Maclay at 121. Courts rarely take into account executive policy when imposing sentence because it may vary from time to time and the court has no control over it. For this reason a court does not take into account the likelihood that an offender might be deported at the end of the non-parole period. But the policy behind such an approach does not seem to me to be applicable in the situation of the applicant when what is being sought is a reduction in the actual sentence to be served on the basis of executive action that would have occurred had he been sentenced in 1982. However, I do not understand that this Court is required to ensure that the applicant would not have to serve any longer in prison for the offences than if he had been sentenced in 1982. 33 The applicant in Moon raised a similar submission as to the relevance of remissions. It was rejected relying upon what was said in Maclay and the legislative intention behind the Sentencing Act 1989 and the accompanying transitional provisions. In effect it was held that the legislature had made plain that prisoners were not to receive the benefit of remissions after a particular date regardless of when the offences had been committed. This aspect of the decision in Moon was not revisited in MJR. This Court should follow Moon but, in any event, I was a member of that Court and believed then, as I do now, that the reasons given for dismissing that ground of appeal by Whealy J were correct. Although the issue was raised again but not decided in R v Slater [2003] NSWCCA 178, the present facts do not appear to me sufficiently different from those in Moon to justify any different result. There is no decision, to which we were referred, where this Court had taken into account the existence of remissions at the time of the commission of the offences as a mitigating factor. 34 Two further grounds of appeal were raised after the Court reserved relating to the failure of the Judge to find special circumstances to reduce the non-parole period from the statutory norm provided in s 44 of the Crimes (Sentencing Procedure) Act. The basis upon which it is now said that the Judge ought to have found special circumstances arose during argument before this Court and was not canvassed with his Honour. However, that does not mean that this Court should necessarily refuse to consider the argument as there is every likelihood that, had the Judge been given the opportunity to consider the submission, he would have found in favour of it. 35 The Judge applied s 44 of the Crimes (Sentencing Procedure) Act, as he was obliged to do, and determined that there were no special circumstances calling for a reduction in the non-parole period. I am not satisfied that, had he been sentencing the applicant for more recent offences, he could not have come to that decision. Nor am I prepared to find that there were necessarily any special circumstances arising by reason of the subjective case of the applicant, although in R v EGC [2005] NSWCCA 392 this Court found special circumstances in the fact that a custodial sentence was being imposed 16 years after the offending. 36 However, in 1982 there was no provision, such as now exists in s 44, requiring that there be special circumstances before departing from a statutory relationship between the non-parole period and the balance of the term. In 1982 the Parole of Prisoners Act 1966, which was in operation at the relevant time, placed no such restriction on the setting of the non-parole period. The question then arises as to whether the Judge ought to have applied the practice as to the fixing of a non-parole period that was operating in 1982 and which was more liberal than that which exists under present legislation. Such an approach would be consistent with the policy expounded and applied in MJR. However, no consideration was given to this issue in that decision and Sully J, who gave the leading judgment on the disposition of the appeal, considered whether there were special circumstances in fixing the non-parole period and noted that the relationship between the overall sentence and the non-parole period was to be 77 per cent; see [180] point [6]. As I have already noted this Court in EGC also applied s 44 and considered whether there were any special circumstances arising from the subjective case of the applicant. 37 It seems to me that this Court should endeavour to apply the practice that existed in 1982 in specifying a non-parole period because that practice would favour the applicant. It can do so on the basis that special circumstances under s 44 are to be found in the fact that there was a different sentencing practice in relation to fixing a non-parole period in 1982 which did not require a finding of special circumstances in order to avoid a statutory relationship between the non-parole period and the balance of the term. In Tatana v R [2006] NSWCCA 398 it was held that special circumstances could be found in order to overcome unfair disparity between co-offenders that would arise from "a too literal application of conventional sentencing principles and the requirements of s 44". It is consistent with that approach to find special circumstances in the present case in order to avoid unfairness that would arise by reason of the delay in the prosecution of the current charges as a result of a change in the law in relation to the determination of the appropriate non-parole period. 38 However to determine what the practice was can lead to the difficulties that were referred to by the Chief Justice in R v PLV (2001) 51 NSWLR 736. It is relatively simple to find the applicable statutory scheme that was in operation but it is more difficult to ascertain how it was applied. For example, there was a difference in approach to the Act identified by this Court in R v Portolesi [1972] 1 NSWLR 105 and the High Court in Power v The Queen (1974) 131 CLR 623 which overruled Portolesi. Power makes it clear that the non-parole period is the minimum period to be served by the offender having regard to all the purposes of punishment including deterrence. Power was approved in Deakin v The Queen (1984) 58 ALJR 367. 39 It seems that in 1982 a non-parole period was fixed at somewhere between a third and a half of the term of the sentence. Clearly one consideration in determining that non-parole period was the seriousness of the offence and the requirement of general deterrence. General deterrence was not a significant matter in the applicant's case because in light of the very lengthy period that had transpired between the offences and the passing of sentence and his reform it was not appropriate to make an example of him to deter others from similar conduct. It seems to me that an appropriate non-parole period would be 18 months because that is in my view the least period that is required to reflect the objective criminality of the offences. 40 In my opinion the application for leave should be granted and the appeal allowed. I propose that the sentences imposed in the District Court be quashed. In lieu the following sentences be imposed: (a) In respect of Counts 2 to 5 a sentence of imprisonment for 18 months to date from 9 March 2006 with a non-parole period of 9 months to expire on 8 December 2006. (b) Count 1, and taking into account the matters on the form 1, a sentence of 2 years 3 months to date from 9 December 2006 with a non-parole period of 9 months to expire on 8 September 2007 the date upon which the applicant is to be released to parole. 41 PRICE J: I agree with Howie J. **********

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