AJO v Regina

Mill v The Queen (1988) 166 CLR 59 CASES CITED : Pearce v The Queen (1998) 194 CLR 610 R v O'Donoghue (No 2) [2001] NSWCCA 495

PARTIES: AJO (Applicant) Regina (Respondent)

COUNSEL: M Johnston (Applicant) D Arnott SC (Respondent/Crown)

SOLICITORS: Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Respondent)

IN THE COURT OF CRIMINAL APPEAL CCA 2007/2808

McCLELLAN CJ at CL GROVE J SIMPSON J

21 February 2008 AJO v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Grove J. 2 GROVE J: On 2 February 2006 the appellant appeared for sentence before Marien DCJ at Campbelltown District Court having been committed from Camden Local Court upon pleas of guilty to thirteen offences charged in that court. Although the charges were therefore not presented in the form of an indictment, it will be convenient to refer to the charges in numerical order as counts. All of the offences, of which I will later provide some detail, involved a variety of sexual misconduct upon young females. There were four victims in all. 3 Count 4 was an offence contrary to s 66C (1) of the Crimes Act 1900. In respect of all counts references to statutory provisions will be to those as applicable at the dates of alleged offences. Count 4 was in these terms: "That on 15 June 1987 at Liverpool he did have sexual intercourse with AD a person above the age of ten years and under the age of sixteen years, to wit, the age of fifteen years." 4 The appellant was arrested on 16 June 2004 and in respect of this and other matters was served with court attendance notices requiring his appearance at the Local Court on 29 June 2004. 5 As at 15 June 1987, s 78 of the Crimes Act was in force in these terms: "No prosecution in respect of any offence under section … 66C(1), … shall if the person upon whom the offence is alleged to have been committed was at the time of the alleged offence over the age of fourteen years and under the age of sixteen years, be commenced after the expiration of twelve months from the time of the alleged offence." 6 It follows that the prosecution in 2004 of an offence alleged to have been committed in 1987 was barred by the statute. This was not drawn to his Honour's attention during the proceedings in the District Court. In this Court, the Crown has conceded that, despite the plea of guilty, the conviction on count 4 cannot stand. That concession was correct and the conviction on that count must be quashed. 7 The appellant seeks leave to appeal against sentence. The structure of sentence and, no doubt, his Honour's attention to the principle of totality involves consideration of the criminality attached to count 4. In the circumstances, leave to appeal against sentence should be granted. 8 The sentence hearing proceeded on the basis of agreed facts and counsel for the appellant acknowledged that these are not in dispute. In the written submissions on behalf of the Crown the statements of facts have been abbreviated and for present purposes they sufficiently indicate the gravamen of offences, and I will draw therefrom the following descriptions. 9 The appellant's date of birth, 4 June 1963, acquires significance in that it shows that he was aged seventeen when the first offence occurred and forty at the time of the last offence. 10 Count 1 - indecent assault (Crimes Act s 76, maximum penalty 6 years penal servitude) - December 1980/January 1981

At the time of this offence his sister VO was aged 11 years. At the milk shed on the property the appellant tied her hands behind her back to a mesh fence, pulled her shorts down and inserted his finger into her vagina a number of times. At the time of this offence digital penetration was prosecuted as an indecent assault. The offence was also accompanied by the appellant fondling her breasts underneath her clothing and playing with his own penis.

Count 2 - carnal knowledge of girl above 10 and under 16 years - (Crimes Act s 71, maximum penalty 10 years penal servitude) January - May 1981

The appellant forcibly had penile/vaginal intercourse with VO (11 years) on the floor of his sister's bedroom.

It might be noted at this point that the Agreed Facts recorded (at page 1): "In the early 1980's, the Offender was spoken to by his mother, who asked him whether he had been touching VO. She then disciplined the Offender who said that he would not do it again."

Count 3 - sexual intercourse without consent with a person under 16 years (Crimes Act s 61D (1), maximum penalty 10 years penal servitude) - May 1985

At the time the appellant was married to AD's older sister. Whilst watching television at night, the appellant inserted his finger into the vagina of AD (then aged 13 years).

Count 4 - sexual intercourse with child between 10 and 16 years (Crimes Act s 66 (1), maximum penalty 8 years penal servitude) 15 June 1987

AD at this time was aged 15 years. During an overnight visit by the appellant and his family to AD's home in Liverpool he came into her room, got into bed with her and had penile/vaginal intercourse with her.

Count 5 - sexual intercourse without consent (Crimes Act s 61D (1), maximum penalty 8 years penal servitude) May 1989

17 year old FO - the appellant's youngest sister - awoke at night to find the appellant lying on top of her. She wore only underpants. He pulled her underpants to the side and had penile/vaginal intercourse with her.

Count 6 - aggravated (victim under 16 years) indecent assault (Crimes Act s 61M (1), maximum penalty 7 years imprisonment) 26 December 1999

This offence occurred when the appellant and his family stayed a number of nights over Christmas with his sister-in-law and her family. On this particular evening the children were playing around the swimming pool when the appellant held 14 years old SR by the arm with one hand and his other hand placed it under both her costume top and rubbed her breasts. SR was the daughter of a sister (other than AD) of the appellant's wife.

Count 7 - aggravated (victim under 16 years) indecent assault - (Crimes Act s 61M (1), maximum penalty 7 years imprisonment) - January 2000

This occurred when the appellant and his family stayed with SR's family to attend a wedding. At the evening reception, in the garden, he rubbed both his hands on the outside of SR's clothing over her breasts from behind.

Count 8 - aggravated (victim under 16 years) sexual intercourse without consent (Crimes Act s 61J (1), maximum penalty 20 years imprisonment) - January 2000

During this same visit, at SR's home one night, he pulled her into the bathroom. The others in the house were watching television. He lifted her onto a bathroom bench, spread her legs and stood between them. He then lifted her singlet top and rubbed his hands over her breasts. He then pulled down her shorts and underpants, and pushed his finger in and out of her vagina a number of times. He let her go when a bowl fell into the sink and made a bit of noise.

Count 9 - aggravated (victim under 16 years) indecent assault - (Crimes Act s 61M (1), maximum penalty 7 years imprisonment) - January 2000

The following weekend, when the appellant again stayed with his family at SR's home, SR awoke during the night to find the appellant feeling her breasts under her singlet. She pushed his hand away and ran out of the room.

Count 10 - aggravated (victim under 16 years) sexual intercourse without consent (Crimes Act s 61J (1), maximum penalty 20 years imprisonment) - January 2000

After SR ran out of the room, she ran outside to where her older brother had a bedroom separate from the rest of the house. As she knocked on her brother's door, the appellant grabbed her from behind placing a hand over each of her breasts. He took her to the laundry where he put his hand down her shorts and underpants and digitally penetrated her. She ran to the kitchen where he took her to the bedroom. In the bedroom she avoided further advances from him by curling into a ball until he desisted.

Count 11 - aggravated (victim under 16 years) indecent assault - (Crimes Act s 61M (1), maximum penalty 7 years imprisonment) - June 2000

On this occasion SR - who was either 15 or not quite 15 years - and her family were staying at the appellant's home. The appellant grabbed SR, tripping her over, so they both fell to the floor in the family room. He pinned her down as she lay on her back. He then pulled up her jumper and drew "smiley faces" on both her breasts and stomach with a texta.

When her family drove home that day SR told her neighbour what had happened and showed her the drawings. SR was to then inform her school teacher and the Department of Community Services together with her parents were informed. SR only disclosed that the appellant's misbehaviour had involved touching her breasts and her parents decided not to involve the police. He agreed to seek counselling, however, he only attended - on his later own admission to SR - only one lesson.

Count 12 - aggravated (under authority) indecent assault (Crimes Act s 61M (1), maximum penalty 7 years imprisonment) - January 2003

Whilst SR - then 17 years of age - was staying at the appellant's home for a few days he approached her, whilst she played the computer, and gave her a love bite on the side of the neck.

Count 13 - indecent assault (Crimes Act s 61L, maximum penalty 5 years imprisonment) - 25 December 2003

This offence occurred at the home of SR's aunt. SR was aged 18 years. As SR lay half asleep on a mattress in the rumpus room the appellant pulled the pillow from under her head, turned her on her back and placed ice cubes down her pants and onto her vagina. This occurred right in front of another aunt who was seated nearby.

Offence Term Commencement and expiry Count 1 1 year 6 mths 9 Dec 05 - 8 Jun 07 Count 2 2 years 6 mths 9 Jun 06 - 8 Dec 08 Count 3 2 years 9 Dec 06 - 8 Dec 08 Count 4 2 years 9 Jun 07 - 8 Jun 09 Count 5 1 year 6 mths 9 Dec 07 - 8 Jun 09 Count 6 3 months 9 Jun 08 - 8 Sep 08 Count 7 3 months 9 Jun 08 - 8 Sep 08 Count 8 2 years 6 mths 9 Aug 08 - 8 Feb 11 Count 9 3 months 9 Jun 08 - 8 Sep 08 Count 10 Non parole period 2 years balance term 4 years 9 Mar 09 - 8 Mar 11 (non-parole period) 9 Mar 11 - 8 March 15 (balance term) Count 11 3 months 9 Jun 08 - 8 Sep 08 Count 12 3 months 9 Jul 08 - 8 Oct 08 Count 13 3 months 9 Jul 08 - 8 Oct 08

The effective encompassing sentence amounted to custody during fixed terms/non parole period of 5 years 3 months commencing on 9 December 2005 and expiring on 8 March 2011 with a balance term of 4 years from 9 March 2011 to 8 March 2015. The earliest date of eligibility for parole was specified as 8 March 2011. 11 The first ground of appeal noted the anticipated quashing of the conviction and sentence on count 4 and argument referred to the amendment to s 59 of the Crimes (Sentencing Procedure) Act 1999. That amendment was facultative and vested a power to avoid injustice where there has been a quashing of a sentence which was to be served concurrently or partially concurrently with another sentence. The problem had been identified in R v O'Donoghue (No 2) [2001] NSWCCA 495. Section 59 as amended does not touch upon the merits of any decision. The quashing of the sentence on count 4 invites re-exercise of sentencing discretion but it does not inevitably follow that there must be a reduction in the totality of term for the appellant's overall criminality. 12 It can be observed that the sentence of two years fixed term imposed on count 4 was directed to be served between 9 June 2007 and 8 June 2009, during the whole of which period the appellant was required to serve concurrently the final six months of the sentence on count 3 (from 9 December 2006 to 8 December 2008) and the whole of the sentence on count 5 (9 December 2007 to 8 June 2009). No part of the overall term of imprisonment was required to be served by the appellant exclusively in relation to count 4. 13 It is, however, a consequence of the quashing of the conviction and sentence on count 4 that this Court should revisit the issue of sentence with particular attention to the principle of totality. It will be convenient to return to this ground in that context after consideration of other independent grounds. 14 The second ground asserted that the sentencing judge erred in failing to take into account that counts 1 and 2 could have been dealt with in the Children's Court. 15 Whether they would have been in fact dealt with there would depend, inter alia, upon the appellant's crimes having been detected before he attained the age of twenty one: Child Welfare Act 1939 s 20(2); Children (Criminal Proceedings) Act 1987 s 28(1)(d). 16 The offence charged as count 1 occurred when the appellant was aged in the range (approximated by a few days) between seventeen years six months and seventeen years eight months and count 2 when he was aged between seventeen years eight months and seventeen years eleven months. His Honour was alert to this circumstance and included the following in his remarks on sentence: "In relation to offence 1 the Crown submitted that I would find this was a worst case. I have given careful consideration to that submission but I am unable to agree with that submission. Whilst it is still an extremely serious offence there are still, in my view, aspects of this offence which do not contain factors that you would expect to find in a worst case such as planning and where there was substantial or indeed any physical injury or substantial emotional harm. I am unable to find, with respect to this offence, that there was any planning. I can only find that this offence was a spontaneous, unplanned criminal act. The offender gave evidence before me that he did not set about planning any of these offences; that they all occurred because of his inability to control his sexual urges. But whilst I do not find that the offence can be classified as falling within the worst case category I do find that it falls in the upper range of objective seriousness for offences of indecent assault. However, I cannot disregard the youth of the offender and the fact that technically at this time he was in law still a child. That must call, under the principles pertaining to the sentencing of young people, the principles of which are well established and do not require me to repeat them, does call for some moderation of the sentence. Further his prior good character should be taken into account by, at that time, this being the first offence, and that that prior good character should be taken into account by way of some further moderation of the sentence. Similarly, in my view, offence 2 falls in the upper range of objective seriousness involving, as it does, serious physical force and coercion against the victim. The sexual intercourse hurt the victim and, again, it is relevant to take into account, in assessing the objective seriousness of the offence, that the victim was only eleven years of age at the time. However, again, like offence 1, the youth of the offender does call for some moderation of the sentence." 17 It is apt to recapitulate that the offence in count 1 was committed when the appellant had tied the hands of his eleven year old sister behind her back to a fence in order to facilitate the sexual assault upon her. The agreed facts revealed that he had used rope which was available for restraining cattle. The digital penetration constituting the offence was accompanied by his exposing his penis and rubbing his groin area against the victim. Her protests that she would report what happened to her grandmother were met with his response that he would accuse her of lying. 18 Count 2 involved an act of penile/vaginal intercourse with the same victim who was still only aged eleven at the time. 19 It would have been hardly surprising, had these offences come to light earlier, if, as was conceded to be an available option, the appellant was directed to be dealt with according to law rather than as a child. 20 It was not suggested that the sentences imposed exceeded the jurisdiction of the District Court. Nor was it submitted that his Honour erred in assessing count 1 as "an extremely serious offence" and count 2 as falling "in the upper range of objective seriousness." 21 As the remarks show, his Honour was well aware of the need to consider the appellant's juvenile status when these offences took place. He did not specifically state that he adverted to the limit of sentencing power of the Children's Court within which the appellant may or may not have been dealt with. His express statement of consciousness of the need for moderation of sentence renders the assertion of error implicit in this ground untenable. 22 The third ground contended that the sentence for count 2 was itself manifestly excessive, having regard to the sentencing range "of the time." 23 In support of this ground, counsel for the appellant drew attention to some statistical material. This Court has constantly warned about the caution that needs to be applied when seeking to utilize statistics. The obvious impediment is the lack of detail about the cases which constitute any survey. The offence of carnal knowledge could be committed, and frequently was, by youths upon females of comparable age who were engaging in consensual sexual intercourse. Reference to Romeo and Juliet in that context was not unknown and a significant number of non custodial sentences (as reflected in the statistics) would be expected to derive from such circumstances. 24 The appellant's offence charged as count 2 was in a wholly different category involving intercourse by a seventeen and a half year old with his sister of eleven years of age. It was not submitted that his Honour was unaware of the need to sentence in accordance with any extant pattern at the time of the offence, insofar as such a pattern could be ascertained. 25 I would reject this ground. 26 The fourth ground complained that the penalty imposed upon count 10 was excessive. The argument drew attention to his Honour's remarks: "I assess offences 8 and 10 as falling in the middle of the range of objective seriousness. Although they involve digital penetration they did involve physical force and coercion." 27 The sentence for count 8 was, as above detailed, a fixed term of two years and six months imprisonment, whereas the sentence for count 10 consisted of a non-parole period of two years with a balance term of four years. As counsel for the appellant pointed out, no reason was given for the discrimination between the sentences on these counts which were found to be based upon similar facts. 28 It is recognized that a judge must fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality: per Gummow J in Pearce v The Queen (1998) 194 CLR 610 at p 624; Mill v The Queen (1988) 166 CLR 59. However, the power of this Court to intervene is dependent upon a conclusion that some other, less severe, sentence should be imposed: Criminal Appeal Act 1912 s 6. 29 In the present instance, his Honour imposed fixed terms on every count except count 10, the commencement date of which was three years four months (9 March 2009) after the date when initial custody commenced (9 December 2005). Whilst there is scope for criticism of the structure of which his Honour has applied, the ultimate question is whether this Court should intervene and, in some way, reduce the effective custody to be undergone by the appellant. 30 As earlier noted, the quashing of count 4 provokes a reconsideration by this Court. The progress of the appellant whilst in custody which is evidenced in his and his solicitor's affidavit and some circumstances attested to by Mr Murray in an affidavit filed by the Crown should be given account and the guarded optimism about the appellant's prospects of rehabilitation of which the sentencing judge spoke, should be more favourably now assessed. 31 Nevertheless, the appellant should receive sentences which appropriately reflect sexual depredation in a varied scale of seriousness against four different victims, all of whom were members of his immediate or extended family group. These depredations extended over more than twenty years and were visited upon victims sequentially. It does not aggravate, but it does not attract leniency, that as long ago as 1981 he did not respond to parental discipline nor that in 2000 when some of his conduct became known, he made no more than a token effort to seek counselling. 32 As earlier stated, the sentence on count 4 which is now to be quashed did not impose any additional custody to other sentences which were being served concurrently. 33 No purpose would be served in engaging in a restructuring of the sentences to achieve the same overall result. 34 In my view, no less severe sentence than an overall imposition consisting of an effective non-parole period of five years and three months and a balance term of four years is warranted in law. 35 I propose the following:

(1) Appeal against conviction allowed in part, and the conviction and sentence on count 4 quashed, and a verdict and judgment of acquittal entered on that count.

(2) Leave to appeal against sentence on charges other than count 4 be granted, but that appeal dismissed. 36 SIMPSON J: I agree with Grove J. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.