Arvinthan v R

Court of Criminal Appeal (NSW)|2022-02-07|Before: Leeming JA, Rothman J, Harrison J

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2019/408802 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2021] NSWDC 253 Date of Decision: 25 February 2021 Before: Bourke SC DCJ File Number(s): 2019/408802

Ground 1

The sentencing judge did not refer to the maximum penalties that applied to the serious indictable offences that were an element of the offences charged. The relevant maximum penalties are: in relation to the enter with intent, the serious indictable offence was larceny, carrying a maximum penalty of 5 years' imprisonment and no standard non-parole period. In relation to the aggravated break and enter, the serious indictable offence that was committed was sexual touching, an offence under s 61KC of the Crimes Act, carrying a maximum penalty of 5 years' imprisonment with no prescribed standard non-parole period.
The submission of the applicant was that the serious indictable offences are an "essential particular" of each offence. Therefore, it was necessary for his Honour to characterise the seriousness of the indictable offence that forms the element of each of the enter, and the break and enter, offences. The applicant submitted that it was "contextually meaningless" to refer to the objective seriousness of offences such as these, without reference to the contextually short maximum penalties of the relevant serious indictable offences.
Moreover, the applicant submitted that his Honour failed to make an accurate assessment of the overall seriousness of the offences. This failure was due, on the submission of the applicant, at least in part, to the failure to consider the short maximum penalties applicable to each of the indictable offences that were said to be serious, and which gave rise to the two offences of enter and break and enter.

Ground 2

In his remarks, the sentencing judge considered that the aggravated break and enter offence was further aggravated because it was committed in the presence of a child. This reflected the Crown's submissions on sentence and his Honour took into account this aggravating feature pursuant to what his Honour considered were the terms of s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The provisions of s 21A(2) list a number of aggravating factors to be taken into account in determining an appropriate sentence for an offence that has been committed. Paragraph (ea) of s 21A(2) lists as an aggravating factor that "the offence was committed in the presence of a child under 18 years of age", but in this case the person under the age of 18 was the victim of the offence. Victim 2 was 17 years of age at the time of the offence.
The applicant submitted that it is contrary to the language and purpose of the provision to take into account the victim's age as an aggravating factor under this provision. Rather, the provision is directed to the commission of an offence in circumstances where a person under the age of 18 is present, but is not the victim of the offence.
The applicant submitted that the purpose of the provision is aimed at the deleterious effect that the commission of a crime might have on the emotional well-being or moral values of the child who was present as a witness to the crime. [1]
According to the applicant, the aggravating factor is not available under the statute. Nor is it available under common law principles. The age of a "child" is not universally defined in the Crimes Act and differs between provisions. There is no offence of sexually touching a child over the age of 16. The offence of touching the child between the ages of 10 and 16 is proscribed by s 66DB of the Crimes Act.
At common law, on the submission of the applicant, in order for the aggravating factor associated with committing a crime in the presence of a child to operate, the prosecution would need to establish, beyond reasonable doubt, that the applicant knew that the victim was 17 years of age, or could have reasonably foreseen that she was, in respect of which there was no evidence. [2]

Resentence

Finally, the applicant submitted that if the Court were satisfied that error had been established, a lower sentence is warranted and should have been imposed for reasons associated with each of the grounds and because: 1. the applicant had shown remorse, having regard to his expressions of remorse, his admissions, and his plea of guilty; and 2. as at the date of sentence, the applicant's prospects of rehabilitation were plainly not good. However, it could not be said, of any young person, that he had no prospects of rehabilitation, and this is a matter that should be taken into account by the Court, on resentence.

Ground 1

The Crown submitted that his Honour's sentencing remarks in the present case complied with that which was required to ascertain the overall objective seriousness of the applicant's offending. As part of his Honour's reasoning, the Crown submitted that his Honour took into account the circumstances and gravity of the serious indictable offences involved in the offences with which the applicant was charged. Further, it was appropriate for his Honour to take those matters into account in the manner which he did.
In relation to the enter with intent to commit serious indictable offence charge, the Crown submitted that his Honour found that the applicant's entering into the house of Victim 1 "was accompanied by an intention to steal, which is itself a serious offence". [3] This latter phrase describing "a serious offence", was a reference to the serious indictable offence element of the offence of enter with intent.
Further, in respect to the charge of enter with intent, the Crown submitted that it is clear from the Remarks on Sentence, read as a whole, that the sentencing judge was aware of, and took into account, the nature of the serious indictable offence, and the circumstance that the serious indictable offence involved the minor intention to steal cigarettes. His Honour's elevation of the seriousness of the offence above the lower range, as described, was a reference to the other factors to which his Honour had referred.
In relation to the break and enter offence, the Crown submitted that his Honour's remarks, in relation to the serious indictable element of this offence, were indicative of his Honour's contemplation of the seriousness of the serious indictable offence. His Honour remarked, according to the submission, that it had involved skin on skin contact with the victim's upper thigh but concluded that the objective seriousness of the offence was towards the lower end of the seriousness. [4]

Ground 2

As is clear from the terms of [36] of the Crown's Written Submissions, and as was reiterated in oral submissions, the Crown accepts that the sentencing judge erred in finding that the offence of break and enter was aggravated by the factor described in s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act. The Crown makes that concession in circumstances where the child in whose presence the offence was said to have been committed was also the victim of the offence.
The Crown submits that both the text of the provision, in particular, the reference to the offence being "committed" in the "presence" of the child, and the purpose of the provision preclude the child to which the paragraph refers being the victim of the offence. The Crown accepts that the Court accurately described the purpose of the provision as being to protect against the deleterious effects upon a child who is a witness to the crime committed, rather than a victim. [5]

Resentence

If, as is conceded, the Court found error, the Crown accepts that it is necessary for the Court to resentence. [6] However, the Crown submits that, given the nature of the offences; the seriousness of the offences; and, the subjective circumstances of the applicant, including his criminal history, the Court should determine that no lesser sentence than that imposed at first instance should have been imposed in all of the circumstances, and dismiss the appeal.

Consideration

As can be seen from the foregoing, the Crown conceded Ground 2, namely, that the sentencing judge erred in finding that the offence was aggravated by the circumstance that it was committed in the presence of a child. In my view, the concession is appropriate.
The reference in s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act refers to the commission of an offence for which the child is present but not the victim. While the fact that a person is a child may be a factor that increases the moral culpability of an offender who has committed an offence against that person, and, accordingly, the objective seriousness of the offence, such a factor is part of the assessment of the objective circumstances of the offending. It is not aggravated by the fact that the offence is one that occurred "in the presence" of a child.
As a consequence of the foregoing, it is necessary for the Court to resentence. [7] Further, it is unnecessary to deal with Ground 1 as part of the appeal, although the underlying issue is dealt with later in these reasons because the issues relate to the resentencing exercise.
The Crown submits that the Court, in exercising its discretion on resentence, should determine that no lesser sentence is warranted in law. Unless it can be said that the sentence imposed could not be lower and still be a sentence that was appropriate to the offending, or that the circumstance recited by the sentencing judge, namely that the sentence was aggravated by the fact that it was committed in the presence of a child, had no effect on the sentence, a lower sentence would be warranted.
The applicant, on resentencing, relies upon two affidavits: one from his solicitor and one on his own behalf. The custodial records annexed to the affidavit of the applicant's solicitor show a custodial history that reveals no offending and an extremely cooperative approach in custody. The applicant has few or no associates in prison; has few or no associates in Australia; and has few associates in Sri Lanka.
The applicant has completed programs in prison that will serve him well on his release. The applicant accepts that he is to be deported to Sri Lanka at the conclusion of his sentence. The fact of his deportation is not a matter that the Court should take into account in fixing a sentence. However, it is a factor that goes to the applicant's prospects of rehabilitation.
The applicant has previously committed an offence of entering a building with intent to commit an indictable offence for which he received a bond. He also has a record for common assault, stalk and intimidate, and sexually touch another person without consent.
The need for specific deterrence, which, on the foregoing basis, would seem to be significant, is qualified to the benefit of the applicant as a result of what seems to be an excellent record in custody and an attitudinal change to offending which is evident from the conversations recorded in the notes of his custodial history and is attested to in the affidavit of the applicant.
General deterrence remains a significant factor, as these are serious offences that are committed in the homes of the victims. [8]
Further, the aggravated break and enter and commit serious indictable offence, which involved the applicant lying on the bed next to the victim and touching her thigh, would have had a serious and frightening effect on the victim, regardless of her age, but even more so when the person was not of mature years.
It is necessary to deal with the applicant's submissions in relation to Ground 1 of the appeal for the purpose of the resentencing exercise. The seriousness of the serious indictable offence that is committed in an enter dwelling offence under s 111(1) of the Crimes Act or in a break and enter under s 112 of the Crimes Act may be a relevant factor in determining the objective seriousness of the offence for which an offender is to be sentenced. But the kernel of the issue on which the sentencing court is required to sentence is the entering of a dwelling or the break and enter.
In most circumstances, the seriousness of the indictable offence that was committed or was intended to be committed is a factor, but it may have no impact upon the sentence to be imposed on an offender. Obviously, if the serious indictable offence is extremely serious, then the seriousness of the enter dwelling or break and enter dwelling is exacerbated. There may be other circumstances where the seriousness of the indictable offence may impact upon the sentence to be imposed.
The fact that the serious indictable offence that was intended or was committed is at the lowest level to qualify as a serious indictable offence results in the offence for which the sentence is to be imposed not being aggravated on account of the greater seriousness of the serious indictable offence intended or committed. On the other hand, if, as stated, the offence to be committed were, for example, murder or rape or assault occasioning grievous bodily harm, then the seriousness of the break and enter is increased and it would be necessary for the sentencing judge, if aggravating the seriousness on that account, to make reference to it.
Where no aggravation of the entry offence or the break and enter offence is to be applied for the seriousness of the intended or completed indictable offence, then a reference to that effect, while useful, is unnecessary. This is what the sentencing judge has done in this exercise.
In this sentencing exercise, as already pointed out, the serious indictable offence committed in relation to the enter dwelling offence with intent is at the lowest end of serious indictable offences. As a consequence, it does not render any worse, the offence of entering a dwelling with intent.
Similarly, the same can be said for the serious indictable offence involved in the aggravated break and enter and commit serious indictable offence. Notwithstanding the low maximum sentence to be imposed for the serious indictable offence committed, the offence is serious by reason of the damage that would be done to a victim because of the offence; damage which ought to have been contemplated by a person committing the offence.
The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act and are otherwise part of the common law. [9] They include ensuring the offender is adequately punished; deterrence of the offender, and of others who may be tempted to offend (specific and general deterrence); protection of the community; promotion of rehabilitation of the offender; denunciation of the conduct of the offender; making the offender accountable for his or her actions; and recognising the harm done to the victim of the crime and to the community.
I have already dealt with specific and general deterrence and, to some degree, the issue of rehabilitation. Before the learned sentencing judge, the applicant relied upon a psychological evaluation of Ms Thea Gumbert of 26 July 2020.
The applicant's background is that he was raised near Colombo by his maternal grandmother. He never met his parents and was told very little about them. Further, he has never asked why he was not in the care of his parents, assuming they were still alive.
The applicant came to Australia as a consequence of his uncle paying for someone to take him on a boat. He arrived speaking no English, having no money or contacts in Australia and no plan for what he would do upon arrival. The voyage was described as "horrible". [10]
He had some limited contact with his uncle in Sri Lanka, while he was living in Sydney, and prior to his arrest. The applicant reports no prior diagnoses of mental health difficulties and described himself to the psychologist as "perfectly alright". [11]
The applicant has never been in a sexual relationship and has had only one romantic relationship. To the psychologist, the applicant minimised the offences with which the Court is now dealing. He was scored in terms of recidivism using static actuarial measures, which are, to some extent, unreliable, and do not alter for changed circumstances, but which scored him as having a well above-average risk of sexual recidivism.
The psychologist formed the impression that the applicant was an emotionally immature young man, lacking in appropriate social skills and the means to form relationships. Further, the psychologist formed the impression that the applicant was somewhat guarded in relation to his mental health and offending behaviour and that the offences reflected maladaptive means to overcome intimacy deficits and to obtain sexual gratification. The applicant, according to the psychologist, evinced a lack of insight into the harmful nature of his actions.
I do not consider that the objective seriousness of the aggravated break and enter and commit serious indictable offence is in the lowest range, having regard to the facts and circumstances of the offending and the nature of the serious indictable offence that was committed. I accept that the enter dwelling with intent to commit a serious indictable offence is, while not at the lowest level of objective seriousness, relatively close to it. I consider the aggravated break and enter and commit serious indictable offence to be below mid-range in the objective seriousness.
I also accept that the applicant has shown some remorse and has some prospects (although not good) of rehabilitation. I consider that his growing maturity will provide some prospects of rehabilitation. I have already referred to, and taken into account, that the offences which occurred in the homes of victims involved some degree of planning.
In terms of subjective circumstances, I have set out the significant hardship that the applicant has suffered in his life so far, and that he is at a relatively high risk of reoffending. These are findings that were made by the sentencing judge and with which the applicant does not cavil.
I consider his youth and the hardship that he has suffered to be circumstances that warrant a finding of special circumstances.
I would propose that an aggregate sentence be imposed, and would set indicative sentences as follows: 1. Enter a dwelling with intent to commit a serious indictable offence, contrary to s 111(1) of the Crimes Act, for which a maximum sentence is 10 years' imprisonment and there is no standard non-parole period: an indicative sentence of 18 months, taking into account the larceny of the lighter and packet of cigarettes, notified on a Form 1; 2. For the aggravated break and enter and commit serious indictable offence (sexual touching), contrary to s 112(2) of the Crimes Act, for which the maximum sentence is 20 years' imprisonment and for which there is prescribed a standard non-parole period of 5 years: an indicative sentence of 3 years, with an indicative non-parole period of 18 months.
As a consequence of the foregoing, I propose that the Court should make the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the aggregate sentence imposed upon the applicant, Keerthy Arvinthan, by the District Court at Parramatta on 25 February 2021 and, in lieu thereof, sentence the applicant to an aggregate sentence of 3 years and 10 months, commencing 1 March 2020 and concluding, 31 December 2023, with a non-parole period of 2 years and 4 months, concluding 30 June 2022. The applicant be first eligible for release on parole on 30 June 2022.
HARRISON J: I agree with Rothman J and with the additional remarks of Leeming JA.

Endnotes

Gore v R; Hunter v R (2010) 208 A Crim R 353; [2010] NSWCCA 330 at [104]; R v Seymour [2012] NSWSC 1010 at [43]; McLaughlin v R [2013] NSWCCA 152 at [31]-[32]; Alesbhi v R; Esbhi v R [2018] NSWCCA 30 at [54].
R v Wickham [2004] NSWCCA 193 at [25]; Josefski v R (2010) 217 A Crim R 183; [2010] NSWCCA 41 at [3] and [39]; R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].
Appeal Book p 17; Remarks on Sentence at [20].
Appeal Book, p 18; Remarks on Sentence at [24]-[25].
Gore v R, supra, at [104].
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
Kentwell v The Queen, supra, at [42] (French CJ, Hayne, Bell and Keane JJ).
Crimes (Sentencing Procedure) Act, s 21A(2)(eb).
Veen v The Queen (No 2) (1998) 164 CLR 465; [1988] HCA 14.
Appeal Book, p 68; Psychologist Report, Thea Gumbert, 26 July 2020, p 3.
Appeal Book, p 69; Psychologist Report, Thea Gumbert, 26 July 2020, p 4. 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. Decision last updated: 02 March 2022

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