AH v R

Court of Criminal Appeal (NSW)|2020-08-07|Before: Macfarlan JA, Fullerton J, Button J, MacFarlan JA

The applicant's youth and lack of criminal antecedents

The applicant was aged between 19 and 20 years at the time of the offending. At the time of the offending he had no criminal antecedents. He was aged 33 years at the time of sentence. By that date, he had multiple criminal convictions for child sexual abuse and had served a lengthy period of imprisonment in the ACT for that offending.
Notwithstanding the applicant's sexual abuse of other child complainants the subject of the ACT proceedings (offences which were committed after the NSW offences and whilst the applicant was on bail for those offences), the sentencing judge expressly took into account the applicant's age at the time of the offending and the fact that he had no criminal record at that time. His Honour also observed, consistent with established sentencing principles, that an offender's good character is of less weight in a sentencing exercise which involves the sexual abuse of children.
I am unable to discern any error in his Honour's approach to the assessment of the weight to be afforded the applicant's relative youth at the time of the offending in 2006 and the fact that he did not have an antecedent criminal record at that time. They were matters, both in the appointment of indicative sentences and in the ultimate imposition of an aggregate sentence after application of the principles of totality, to be afforded such weight as the sentencing judge considered that they deserved in the exercise of the sentencing discretion.

The applicant's dysfunctional background

The facts relevant to an assessment of the applicant's contention that the sentencing judge failed to adequately take into account his dysfunctional background (or to take it into account at all) included, most relevantly, his account, given in a range of forums, of the circumstances in which he was subjected to bullying and sustained sexual abuse by teachers and older students whilst he was a student at a boarding school in Queensland between the ages of 9 and 16. His Honour expressly took into account that material, noting that the primary judge in the ACT sentence proceedings was satisfied that the applicant had been the subject of serious sexual abuse as a juvenile. His Honour also took into account the fact that the applicant had furnished a detailed submission to the Royal Commission into Institutional Responses to Child Sexual Abuse concerning the abuse he was subjected to as a school student.
The applicant's accounts of sustained sexual abuse were also taken into account in the various psychological assessments Dr Reid performed for the purposes of his report. The applicant reported to Dr Reid that he had been threatened with harm if he reported the abuse and that, as a result, he was socially isolated at school and that he experienced difficulties dealing with the residual effects of the sexual abuse he had endured upon leaving school.
The sentencing judge took into account the views of Dr Reid extracted in full in the sentencing reasons as follows: From the history and from my examination it's difficult to determine [the applicant's] motivation for the sexual assaults when they occurred. Considering his alleged history of prolonged sex abuse during his childhood and the psychological trauma he describes from that abuse while he was at boarding school, from the age of nine to 16, it is likely that this trauma affected the development of his own sexuality and forms a nexus to the offences that he has been charged with. It would appear at that time he has poorly developed social skills and difficulties in relating to similarly aged peers and his sexual orientation would appear at that time and appears to continue to be confused.
Ultimately, the sentencing judge was satisfied that the abusive sexual experiences the applicant was exposed to over his formative years informed his sexuality in such a way that male children became a source of sexual attraction to him. The sentencing judge also expressly found a causal nexus between the abuse the applicant suffered and his sexual offending against children, such that ongoing psychological treatment was necessary to facilitate the applicant's safe release into the community on parole.
I am not satisfied the applicant has established that the sentencing judge failed to take either his youth or his dysfunctional background into account on sentence or to give those considerations appropriate weight in the exercise.

Prospects of rehabilitation

The applicant's prospects of rehabilitation were informed by the clinical assessments undertaken by Dr Reid and his analysis of the applicant's responses using a variety of clinical tools. Dr Reid assessed the applicant's intellectual functioning using the Wechsler Adult Intelligence Scale - IV, which revealed he was of average to high average intellect, with his non-verbal perceptual reasoning abilities in the superior range and at the 92nd percentile. Dr Reid also administered the Personality Assessment Inventory to assess issues such as symptom exaggeration, malingering and defensiveness, as well as symptoms consistent with a psychological disorder, as to which Dr Reid reported that the applicant: … was inclined to portray himself in a more positive light being relatively free of common shortcomings and was reluctant to recognise minor faults in himself. The degree to which this factor was elevated however was not sufficiently high to render the interpretation of the overall clinical profile invalid.
The applicant was also screened for anxiety, depression and stress, and reported no significant symptoms of any of these matters.
The applicant told Dr Reid he had a large number of people from whom he could obtain support when needed. Dr Reid was of the opinion that, from an overall analysis of the applicant's clinical profile, it appeared likely that these factors were "a favourable prognostic sign for [the applicant's] future adjustment on his release from prison".
The sentencing judge placed substantial reliance upon Dr Reid's report and gave what he described as "significant weight" to the opinion of Ms Twala, a registered psychologist who had been actively engaged in the applicant's treatment whilst he was in custody in the ACT, and her endorsement of what she described as the applicant's "relentless commitment" towards his rehabilitation as an inmate in the NSW correctional system. The sentencing judge also endorsed Dr Reid's recommendation that the applicant receive "psychodynamic/psychoanalytically orientated psychotherapy" to assist him to resolve issues related to his stunted psychosexual development and the prolonged psychological issues arising from childhood sexual abuse and that he attend a compulsory community-based treatment program for sexual offenders. I note that the sentencing judge also recommended that the NSW Parole Authority give careful consideration to that material in considering the conditions which it might impose when the applicant is eventually released to parole.
Dr Reid considered that whilst it was difficult to determine whether the applicant would reoffend against male children in the future, having considered the extent of the applicant's response to therapy in custody, together with his expressions of remorse, Dr Reid concluded that the applicant was at low risk of reoffending.
The sentencing judge was unable to form the positive view that the applicant was unlikely to reoffend. His Honour described the applicant's prospects of rehabilitation as "guarded", in large part because of what he referred to as a level of "unresolved pathology" as revealed in Dr Reid's clinical assessment and the applicant's "pattern of his offending" which his Honour understood as "manifest complications on his psychology of the offending against him [as a school student]". While the sentencing judge accepted that the applicant had done all he could to rehabilitate himself whilst in custody, the progress of his rehabilitation remained very much in issue. His Honour also noted that the ACT Parole Board had refused a parole application in December 2016 due to their concerns that the applicant "requires further intensive treatment to be considered a suitable candidate for parole".
The sentencing judge acknowledged that as the applicant had been in custody for an extended period of years as a relatively young man there was a risk of him becoming institutionalised which his Honour treated as a factor that was not "protective to the community". While it is not entirely clear what his Honour meant by that remark, in the context in which it appears in the sentencing reasons, the risk of the applicant becoming institutionalised appears to have been treated as one of the circumstances underpinning the finding of special circumstances, as to which his Honour said: …I find special circumstances because he needs an extended period of supervision in the community and he is effectively still serving his first period of imprisonment even though it will be a very lengthy one. Additionally, it is in the protection of the community to avoid him becoming institutionalised. What that means is that I propose to rearrange the relationship between the non-parole period and the head sentence.
His Honour's assessment of the applicant's prospects of rehabilitation as at the date of sentence as "guarded" was a finding open to him on the material. As I read the sentencing remarks, that finding was also informed by the fact that the applicant has not been at his liberty since his arrest in the ACT in 2009. While the assessment of an offender's future prospects of rehabilitation are necessarily prognostic, that assessment is necessarily qualified where a young offender has been in custody for many years.

The issue of delay

The applicant's counsel submitted that the impact of delay ought to have "dominated the sentencing exercise" and should have weighed more significantly in the imposition of the aggregate sentence and/or the commencement date of that sentence. Counsel submitted that the treatment given to it by the sentencing judge who merely took delay into account in an "undiscounted fashion" has been to deprive the applicant of a significant factor in mitigation of sentence. Counsel submitted that in circumstances where the NSW charges have been unresolved for over a decade, during which time the applicant had shown what was accepted by the sentencing judge to be a demonstrated commitment to his rehabilitation, a greater degree of leniency was warranted than what was reflected in the ultimate sentencing order.
The sentencing judge correctly observed that the delay in the applicant being sentenced for the course of sexual offending in NSW in 2006 was because he had been convicted and sentenced in the ACT before the NSW offences could be finalised. His Honour also noted the issue of delay interacted, in a practical sense, with totality considerations in circumstances where, because the offences were committed in different jurisdictions, the applicant has not been in a position to invite one sentencing court to take into account the totality of his offending in a single sentencing exercise. Delay was, however, ultimately taken into account by the sentencing judge backdating the aggregate sentence to commence six years into the sentence imposed in the ACT. The commencement date of 9 April 2015 also had the effect of the sentence imposed in the ACT for attempting to pervert the course of justice being entirely subsumed in the aggregate sentence imposed for the NSW offences.
I am not persuaded that his Honour's treatment of the fact of delay is indicative of error. That is not to say that his Honour might not have afforded it greater weight; it is merely to emphasise that the weight he gave it in the synthesis of all relevant sentencing considerations was a matter for the exercise of discretion which has not been shown to have miscarried.

Remorse

Although the applicant did not give evidence on sentence, his attitude to his past offending was the subject of repeated reference in the materials upon which he relied on sentence, including statements to various people which were said to be eloquent of remorse.
In Dr Reid's report, the following was recorded: When asked about his sexual offending he expressed great remorse and guilt over the hurt he caused his victims and he said he is horrified by what he did to cause such pain and anguish to the boys he sexually assaulted. He could not clearly identify the precursors of the offending but stated in retrospect he felt there must have been some grooming. (Emphasis added.)
Dr Reid went further and regarded the applicant's "expressed remorse and guilt over his past offending" as contributing to his assessment of the risk of him reoffending being low.
In the letter of support from Ms Twala, she said: [The applicant] for the years that I have known him in both group psychotherapy and in his individual therapy had been his grief, shame and anger that he had put of his victims and his family [sic]. He appeared to be concerned about everyone but himself.
Finally, in a letter from the applicant's father and a letter from his mother tendered before the sentencing judge, they said: I have at all times fully supported my son during his years of incarceration both in the ACT and more recently NSW. From the many prison visits over the past decade I am fully aware of his charges and privy to his inner thoughts in regards to the charges, his regrets and remorse for his actions, his fear of return to prison life and not re-offending again in the future. … I fully understand [the applicant's] current predicament … and know he deeply regrets his actions and also for not seeking assistance from family at the time. The serving of his full sentence in AMC, ACT has assisted him immensely in his rehabilitation and road to recovery.
In oral submissions at the sentence hearing, the applicant's legal representative referred to the evidence of remorse, albeit in general terms, and to the applicant's pleas of guilty which, in her submission, were also a strong indication of contrition and remorse.
In the Crown's written submissions on sentence, remorse was accepted as a matter the applicant could rely upon in mitigation of sentence, as to which it was said oral submissions would be directed. The Crown's oral submissions did not address remorse.
No reference was made to counsel's submissions or to the question of remorse more generally in the sentencing remarks.
I am unable to accept the Crown's submission on the appeal that there was an implied acknowledgement by the sentencing judge of the applicant's remorse in his Honour's reference to Ms Twala's letter of support and Dr Reid's evidence, and that he has simply overlooked making express reference to it in the sentencing remarks. In the context of the overall sentencing exercise, the applicant's remorse, the genuineness of which the Crown did not challenge in the sentencing hearing, was a matter deserving of weight in the sentencing exercise and a matter the applicant was entitled to have had expressly taken into account in his favour in mitigation of sentence.
To that limited extent, I am satisfied the first ground of appeal has been made out and this Court is obliged to resentence the applicant in accordance with Kentwell v The Queen (2014) 88 ALJR 947; [2014] HCA 37.
That being the case, it is not necessary for this Court to consider the remaining grounds of appeal. Insofar as the second ground of appeal is concerned, it will be for this Court to apply totality principles in the resentencing exercise. As concerns the complaint that the sentence was manifestly excessive, since the sentencing discretion is to be exercised fresh, complaint about the severity of the aggregate sentence imposed by the sentencing judge falls away.

Resentence

The Crown submitted that were the Court to find error in the failure of the sentencing judge to expressly take into account the evidence of remorse, the evidence available to this Court in assessing remorse as a factor in mitigation under s 21(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) on the balance of probabilities is limited. The applicant did not give evidence of his remorse before the sentencing judge and has made no explicit reference to it in his affidavit sworn on 8 June 2020 in the event of resentence. The Crown submitted that such evidence on the question of remorse that is available comes from third party sources and should be treated by this Court with circumspection. In the result, the Crown submitted that this Court would either give the applicant's remorse no weight, or attribute to it only marginal weight, such that this Court would conclude there should be no adjustment to the indicative sentences and no lesser aggregate sentence than that which was imposed by the sentencing judge.
While the applicant's most recent affidavit did not refer expressly to his remorse, I am prepared to infer that the statements he made to both Dr Reid and Ms Twala and to his parents were consistent with his remorse being genuine and reflecting an acceptance of his responsibility for the sexual offences committed by him in 2006 at a time when he was a much younger man.
I note that in Imbornone v R [2017] NSWCCA 144 at [57], Wilson J emphasised the cautionary approach that a sentencing court should take to statements of remorse made to third parties. I also note that in Porter v R [2019] NSWCCA 117, a case not dissimilar to the facts in this case and upon which the Crown relied in the resentencing exercise, RA Hulme J (with whom Hoeben CJ at CL and Davies J agreed) adopted that cautionary approach and concluded that the untested evidence of remorse in that case was such that RA Hulme J was not able to reach the positive conclusion that the applicant was "probably" remorseful.
In this case, although the applicant did not give evidence before the sentencing judge, he did give evidence of his remorse for the sexual offending the subject of the proceedings before the Supreme Court of the ACT in November 2010. After serving a lengthy sentence in the ACT and before being transferred into the NSW correctional system, he has also committed himself to what I am prepared to accept is a determined resolve to maintain and advance his full rehabilitation. I regard as reliable his consistent statements to various people that he is indeed remorseful.
On resentence I also take into account in the applicant's favour that he has been a productive inmate within a number of NSW correctional centres, including in the role of Management of Security, sweeper to the kitchen clerk at the South Coast Correctional Centre where he has managed the daily operations of the kitchen staff and 48 inmate workers. I also note that since being sentenced in September 2019, the applicant has been transferred to the Kirkconnell Correctional Centre where he is a unit sweeper, having been reclassified to allow for his transfer. I accept that in that correctional centre he has maintained a proactive attitude and that he is a contributing member of the inmate community. I note that he has enrolled in a small business course and in various manual skills courses, including forklift driving, chainsaw, test and tag (electrical), grounds maintenance, food safety and welding. He is currently under referral to both the EQUIPS Foundation and CUBIT program. I also note his determination to resume tertiary studies in a Bachelor of Science and Bachelor of Engineering (majoring in Mechatronics), having completed three of the seven years of that course of study which was interrupted following his transfer from the ACT to NSW.
In circumstances where the applicant has been in continual custody for over a decade and where he is, even at the date of resentence, a relatively young man at age 34, it is difficult to treat the risk of his reoffending in other than the guarded terms expressed by the sentencing judge. I am, however, of the view that the passage of 12 months since the date of sentence, without anything to suggest any retardation in his progress towards rehabilitation or any interruption in that progress by internal disciplinary action, that his commitment to his rehabilitation is entitled to weight in the resentencing exercise. I accept his evidence on resentence that he remains "dedicated and committed to [his] positive rehabilitation".
The objective seriousness of the applicant's offending cannot be understated. For my purposes, I would not propose any alteration to any of the 20 sentences indicated by the sentencing judge in the schedule incorporated in this judgment at [6]. Neither would I propose any adjustment to his Honour's assessment of the objective seriousness of any of the individual counts.
Notwithstanding the gravity of the totality of the criminality comprehended by the applicant's pleas of guilty to the 20 offences on the indictment involving the sustained sexual abuse of two young complainants over a 12-month period, including two counts of using one of those children for photographic purposes and the production of child pornography, after taking into account the strength of the applicant's subjective case on resentence, inclusive of his remorse and, perhaps most significantly, the fact that as a very young man he has been in continual detention for almost ten years for offending committed by him when he was a troubled and traumatised victim of sexual abuse, I am of the view that an aggregate sentence of 11 years with a non-parole period of 7 years should be imposed. I propose that sentence be backdated to the same date appointed by the sentencing judge to account for the delay in the proceedings in NSW ultimately being brought to finality.

Orders

The orders I propose are as follows: 1. Leave to appeal is granted. 2. The appeal against sentence is upheld. 3. Quash the aggregate sentence imposed in the District Court on 6 September 2019 and in lieu thereof impose an aggregate sentence of 11 years' imprisonment commencing on 9 April 2015 and expiring on 8 April 2026 with a non-parole period of 7 years expiring on 8 April 2022.
BUTTON J: I agree with Fullerton J.

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The first ground of appeal

The first ground of appeal concerns what is said to be the failure of the sentencing judge to properly take into account a number of factors relied upon by the applicant in mitigation of sentence.
On the appeal, the applicant accepted that there was a degree of overlap between the first ground of appeal which must be understood to allege a series of House v The King errors ((1936) 55 CLR 499; [1936] HCA 40) since the weight to be afforded any factor relied upon in mitigation of sentence is quintessentially a matter calling for the exercise of a sentencing discretion, and the third ground of appeal which contends that the aggregate sentence imposed was manifestly excessive, in large part because of what is said to be the combined weight of the mitigating factors.

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