BR v R

Court of Criminal Appeal (NSW)|2015-05-18|Before: Bathurst CJ, Simpson J, Hulme J

Judgment

BATHURST CJ: I agree with the orders proposed by Simpson J and with her Honour's reasons.
SIMPSON J: On 14 March 2014 the applicant was sentenced by Judge English in the District Court after entering pleas of guilty to a series of charges, the majority of which were of sexual offences against young female children. Those charges that were not of offences against children involved, in one form or another, child abuse material.
English DCJ sentenced the applicant under the provisions of s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"). She imposed an aggregate sentence of imprisonment for 23 years, with a non-parole period of 17 years, commencing on 2 February 2012. In accordance with s 53A(2)(b) she nominated the sentences she would have imposed in respect of each separate offence if sentencing individually.
A table showing the offences, the maximum penalties prescribed, the standard non-parole period prescribed by Pt 4 Div 1A of the Sentencing Procedure Act (where applicable) and the indicative sentences nominated by her Honour is annexed to these reasons.
The applicant now seeks leave to appeal against the asserted severity of the sentence imposed. There was some uncertainty as to whether or not, in order to seek leave, he needs an extension of time. The Crown's position was that, as there is no merit in any of the grounds which he seeks to advance, an extension of time should be refused; the Crown conceded, however, that if there is merit in any of the grounds, an extension of time ought to be granted.
Although I have come to the view that there is no merit in any of the grounds, I am also of the view that, having regard to the length of the sentence and the complexity of the sentencing exercise, an extension of time, to the extent it is required, ought to be granted.

The offences

In all, the applicant admitted his guilt of 41 offences, of which 16 were taken into account under the procedure provided by Pt 3 Div 3 of the Sentencing Procedure Act; he entered pleas of guilty to 25 charges. All offences except one were committed over a seven month period that began on 1 July 2011 and came to an end, with the arrest of the applicant, on 10 February 2012. The exception was an offence of possession of child abuse material discovered on a USB stick in the applicant's clothing on 11 May 2012, when he was routinely searched, apparently in the course of a court appearance.
Five victims were involved. In order to preserve their anonymity, I will refer to them as Victims 1 to 5. The youngest was 5 years of age; the oldest was 12 years of age.
The offences were:

11 offences of aggravated indecent assault on a child under the age of 16 years, in respect of which s 61M(2) of the Crimes Act 1900 (NSW) prescribes a maximum penalty of imprisonment for 10 years; a standard non-parole period of 8 years is prescribed;
3 counts of committing an act of indecency with a child under the age of 16 years, in respect of which s 61N(1) of the Crimes Act prescribes a maximum penalty of imprisonment for 2 years;
2 counts of aggravated act of indecency on a person under the age of 16 years (the aggravating circumstance being that the victim was under the authority of the applicant), in respect of which s 61O(1) of the Crimes Act prescribes a maximum penalty of imprisonment for 5 years;
1 count of committing an act of indecency on a child under the age of 10 years (the aggravating circumstance being the victim was under the authority of the applicant), in respect of which s 61O(2) of the Crimes Act prescribes a maximum penalty of imprisonment for 7 years;
3 counts of inciting a person under the age of 16 years to an indecent act being filmed, in respect of which s 61O(2A) of the Crimes Act prescribes a maximum penalty of imprisonment for 10 years;
2 counts of sexual intercourse with a child under the age of 10 years under authority, in respect of which s 66A(2) of the Crimes Act prescribes a maximum penalty of imprisonment for life; a standard non-parole period of 15 years is prescribed;
2 counts of grooming a child under the age of 14 years for unlawful sexual activity, in respect of which s 66EB(3) of the Crimes Act prescribes a maximum penalty of imprisonment for 12 years; a standard non-parole period of 5 years is prescribed;
1 count of sexual intercourse with a child over the age of 10 and under the age of 14, in respect of which s 66C(1) of the Crimes Act prescribes a maximum penalty of imprisonment for 16 years; a standard non-parole period of 7 years is prescribed;
4 counts of aggravated sexual intercourse with a child over the age of 10 and under the age of 14 (the aggravating circumstance being that the victim was under the authority of the applicant), in respect of which s 66C(2) of the Crimes Act prescribes a maximum penalty of imprisonment for 20 years; a standard non-parole period of 9 years is prescribed;
6 counts of using a child under the age of 14 years for the production of child abuse material, in respect of which s 91G(1)(a) of the Crimes Act prescribes a maximum penalty of imprisonment for 14 years, and a standard non-parole period of 6 years is prescribed;
6 counts of possession of child abuse material, in respect of which s 91H(2) of the Crimes Act prescribes a maximum penalty of imprisonment for 10 years.

For some years prior to the offending, the applicant had been a support member of an organisation the name of which suggests that it was associated with individuals who had served in the Vietnam War. He became close to office holders in the organisation, and, as a consequence, came into contact with grandchildren and children of office holders and members of the organisation. From time to time he picked up children from school or after school care, and, on several occasions, children stayed overnight at his home. The applicant had a young son who attended the same school as one of the victims (Victim 1). This enabled him to pick up Victim 1, and invite her to his home. It is plain that the parents and grandparents of the children trusted the applicant to look after their children.
It is unnecessary to set out all of the details of each of the 41 offences. A sample will suffice to illustrate the extent of the criminality involved.

Victim 1

In all, the applicant committed 13 offences against Victim 1. They included using her for the production of child abuse material, inciting her to commit an act of indecency while being filmed, aggravated indecent assault, and sexual intercourse on a child while under authority. The last is an offence that carries a maximum penalty of imprisonment for life.
On one occasion in early 2012, the applicant picked up Victim 1 from school and took her to his home and then into his bedroom. He removed her underwear and then his own; he rubbed his penis on her vagina. He held his mobile phone in one hand and filmed the activity. This continued until Victim 1 said that she wanted to watch the video. This event gave rise to a charge of aggravated indecent assault on a person under the age of 16 years, under s 61M(2) of the Crimes Act, carrying a maximum penalty of imprisonment for 10 years and a standard non-parole period of 8 years.
Not long after, the applicant again picked up Victim 1 from after school care, and took her, with his son, to his home. He removed his clothing, placed his penis in her mouth and told her to suck it. This gave rise to a charge under s 66A(2) of the Crimes Act, carrying a maximum penalty of life imprisonment, and a standard non-parole period of 15 years.
Victim 1 was 6 years of age.

Victim 2

The applicant committed 18 offences against Victim 2. They included grooming for unlawful sexual activity, committing an act of indecency, indecent assault, using her for the production of child abuse material, and aggravated sexual intercourse. On one occasion, the applicant involved Victim 2 and his own son in playing what he called "the naked club game".
In late 2011, Victim 2 and Victim 3 were staying at the applicant's home. While they were in the kitchen having breakfast, the applicant turned on a computer to show a pornographic film, apparently involving a child of 10. (This gave rise to two charges of grooming a child under the age of 14 for unlawful sexual activity.) Shortly after, the applicant opened the front of the dressing gown he was wearing, exposed his penis, and masturbated. This gave rise to two charges of committing an act of indecency with a child under the age of 16.
On another occasion during the same period, Victim 2 and Victim 3 were in Victim 3's bedroom at her home. They heard the applicant enter, and hid under the bed. The applicant pulled both girls out from under the bed; Victim 3 left the room, saying she needed to use the toilet. The applicant removed Victim 2's underwear, and performed cunnilingus on her. This gave rise to a charge of aggravated sexual intercourse with a person above the age 10 years and under the age of 14 years (s 66C(2)), carrying a maximum penalty of imprisonment for 20 years.
Victim 2 was aged 11 years.

Victim 3

The applicant committed 5 offences against Victim 3. Two also involved Victim 2, and have been outlined above (at [17]). These were not the only offences committed against Victim 3 (see Table).
Victim 3 was aged 7.

Victim 4

The applicant committed 2 offences against Victim 4. Victim 4 was at the home of Victim 3, in her bedroom. The applicant picked her up to "piggyback" her, and pressed his fingers on her vagina. He ceased when she told him to put her down. This gave rise to a charge of aggravated indecent assault on a person under the age of 16.
A little later, the applicant entered the bedroom and masturbated to ejaculation in front of Victim 4. As he left the room, he told Victim 4 not to tell anybody. This gave rise to a charge of committing an act of indecency.
Victim 4 was aged 11 years at the time.

Victim 5

Victim 5 lived with her family in country NSW. In January 2012, the family travelled to attend a birthday party at the home of one of the officials of the organisation to which I have referred above.
At a time when Victim 5 was alone outside the house, the applicant pulled his pants down and exposed his penis. This gave rise to a charge of committing an act of indecency. Later, he picked her up to "piggyback" her, and pressed his fingers against her vagina. This gave rise to a charge of aggravated indecent assault.
Victim 5 was aged 5 years.

The child abuse material offences

Some of the child abuse material offences were committed by the applicant in the course of committing the offences against the various victims, by recording what he was doing on his mobile telephone. Others involved a collection of material contained in his mobile telephone or his computer. A final offence was committed 2 months after his arrest, when he was found to have in his possession a USB stick containing 30 images of naked young females.

The applicant's personal circumstances

The applicant did not give evidence in the sentencing proceedings. A report prepared by a psychologist was in evidence. From that report, the following information concerning the applicant's personal circumstances is derived.
The applicant was born in February 1959. He was 52 years of age at the time of the offending. His only prior criminal conviction was for assault occasioning actual bodily harm, for which he was, in 1996, sentenced to imprisonment for 6 months to be served by way of periodic detention. He had regular employment as a highly skilled refrigeration mechanic.
He has two adult children from his first marriage, and had been married to his then current wife for 10 years. The couple had a 7 year old son. His wife divorced him after the revelation of these offences.
The applicant told the psychologist that there was financial stress in the marriage, and that his wife had a low sex drive, which created an additional burden on the marriage.
When asked by the psychologist how the offences had begun, the applicant said that he was unsure, but that it was connected with his association with the organisation mentioned above. He said that the organisation had a club house on a large block of land, with a stage for entertainment and events, in which he participated. He said that toilet facilities were some distance away, so that during intervals in performances, he developed the habit of going to the back of the stage to urinate. Young female children began to come and watch him.
At about the same time, because of his wife's low sexual interest, he began using medication designed for erectile dysfunction disorder. As a result, he began masturbating frequently. Having seen this, three young girls began "sneaking up" on him to watch.
He then described an event that he said had taken place when one of the victims had invited him to take part in a game. He said that he took this to be an invitation to take part in sexual activity. He took part in the game, but went further and sexually assaulted the child.
The applicant told the psychologist that he found the prison environment very difficult; other prisoners who are not sex offenders were threatening and abusive towards him.
In this respect, during the course of submissions, the applicant's legal representative told the sentencing judge that he had in fact been assaulted in prison, to the point where he was taken to a hospital for observation. He suffered bruising and swelling.
The psychologist assessed the applicant as in the extremely severe range for depression, stress and anxiety. He considered him to be very remorseful and sincere in wishing never to re-offend.
He assessed the applicant to be a sex offender, but not a paedophile. In this respect, he had regard to the standard reference text on psychiatric disorders, the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 4th edition, text revision. He set out the criteria for paedophilia which are:

recurrent intense sexually arousing fantasies, sexual urges or behaviours involving sexual activity with a prepubescent child or children, over a period of at least 6 months;
action on such sexual urges, or marked distress or interpersonal difficulty caused thereby;
the offender is at least 16 years of age and at least 5 years older than the child or children involved. (The psychologist gave no clear explanation for his conclusion that the applicant did not fall within this category.)

Also before the sentencing judge were two victim impact statements, prepared by the mothers of two of the victims. Both wrote of changes in their daughter's disposition and mood, loss of confidence and reluctance to socialise. There was more detail but it is unnecessary to go into. What was recounted by the mothers is in accordance with what would be expected.

The Remarks on Sentence

English DCJ recounted the details of the offences at some length. She described the applicant's conduct as "particularly heinous and evil", involving planning (by facilitating children staying overnight at his home). Adopting a submission made on behalf of the Crown, she said that the applicant "used his own son as bait" to gain access to the children, and to facilitate playing games with the victims. She was highly critical of the applicant's explanation to the psychologist of the commencement of his offending, saying: "… he appears to lay the blame either at the feet of the victims, his ex-wife, or as a result of medication he was taking for a erectile dysfunction. He even goes so far as to suggest in some way that one of the young girls invited him to take part in sexual activity with her." She found this "a most extraordinary statement". She said: "He has now deprived these young girls of a normal childhood and he has caused them and their families significant emotional trauma."
She found that his prospects for rehabilitation were guarded, and that the applicant would be in need of extensive psychotherapy and attendance at a sex offenders' program to correct his thinking.
She gave "very little weight" to the opinions of the psychologist; in particular, she rejected the assessment of the applicant as a sex offender rather than a paedophile. Also contrary to the opinions expressed by the psychologist, she found that the applicant's last instance of possession of child abuse material (after his arrest) indicated a lack of remorse for his offending.
Her Honour considered, appropriately, that there was a need to protect the community from the applicant, and that nothing less than a sentence of fulltime custody would suffice to meet the circumstances of the case.
With respect to the applicant's pleas of guilty, which were entered in the Local Court, she stated her intention of allowing a reduction in the sentence she otherwise would have imposed of 25 per cent: see R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383.
She accepted a submission that it would be appropriate to find, pursuant to s 44(2) of the Sentencing Procedure Act, special circumstances justifying a reduction in the ratio of the non-parole period to the head sentence. The reason she gave for this was that the applicant would need a longer than normal period on parole to ensure that he attended appropriate counselling on his eventual release, including attendance at a sex offenders' program to prevent relapse.
She made express reference to what she had been told from the Bar table concerning the assault upon the applicant in prison. She noted that he suffered from bruising and swelling, and observed: "He is said to be now more fearful of what the future holds for him in custody. It is trite to say that he has brought it upon himself." (It may here be observed that this was an unfortunate remark. A court ought not to be seen as giving any semblance of condonation to extra-curial punishment of this kind.)

The application for leave to appeal

Four grounds of the proposed appeal were identified. These were framed as: "1. The aggregate sentence imposed … was manifestly excessive. 2. Her Honour, in sentencing the Offender found special circumstances but failed to apply the finding to the actual sentence imposed in any material way. 3. Her Honour in sentencing the Offender failed to take into account his age and antecedents and imposed a sentence which was 'crushing' in its severity. 4. Her Honour failed to give the Offender adequate discount in respect to the offences considering that pleas were entered in the Local Court in May 2013, which was effectively at the first opportunity, in that the theoretical head sentence prior to the application of the discount for the utilitarian value of the pleas was manifestly excessive."

Ground 1: manifestly excessive

On behalf of the applicant detailed written submissions (prepared by counsel who ultimately did not appear on the hearing) were provided. In support of Ground 1, challenges were made to various of the sentences indicated by the judge as the sentences she would have imposed if sentencing individually. For example, the written submissions focussed upon a count of possession of child abuse material, charged under s 91H(2) of the Crimes Act, an offence which carries a maximum penalty of imprisonment for 2 years.
It was submitted that there was no evidence as to when this material came into existence (or into the possession of the applicant); and that, if his possession pre-dated the offences against the various children, it would have been charged as a first offence, subject to a very early plea of guilty, but that it would be unlikely that any custodial sentence would have been imposed.
There are difficulties with this proposition. First, this Court was not invited to examine the material, and is not in a position to assess the degree of gravity associated with it. Second, it is entirely speculative to suggest that the applicant's possession of the material pre-dated the other offences. Third, no sentencing precedents were provided to support the submission that a non-custodial sentence might properly have been imposed. In my opinion, the submission runs contrary to authority: R v Booth [2009] NSWCCA 89; R v De Leeuw [2015] NSWCCA 183 (see, esp, the authorities cited at [72]); R v Porte [2015] NSWCCA 174. I would reject this complaint.
Another specific complaint concerned a sentence of 14 years indicated in respect of an offence of aggravated sexual intercourse with a person between the ages of 10 and 14 years, which carries a maximum penalty of imprisonment for 20 years.
It was submitted that, having regard to the applicant's then criminal history, the sentence was manifestly excessive, and manifestly excessive to such an extent that it infected the aggregate sentence. Again, no sentencing precedents were advanced to support this assertion.
The victim of this offence was 11 years of age. The offence involved the applicant inserting his penis into her vagina. There is no substance in the submission that the applicant's criminal history warranted a lesser sentence; this offence was one of a series committed over a period of 7 months, against five victims.
I do not propose to detail the litany of assertions made in the written submissions concerning others of the indicated sentences. None was supported by any authority.
Under this ground, the applicant also made complaint about the manner in which her Honour gave effect to her stated intention to reduce the sentence, by reason of the applicant's pleas of guilty, by 25 per cent. In doing so, her Honour said: "His pleas demonstrate contrition and they, of course, have significant utilitarian value given the nature of the offences committed by him and the saving of the need for these young girls to give evidence, although I must say the Crown case against him appears to be particularly strong, given the video material located involving some of the victims."
This observation was contrasted with her Honour's rejection of the psychologist's opinion that the applicant had demonstrated remorse. In that context, the submission was made: "A finding of 25 percent discount reflects an acceptance of true remorse; a head sentence of 30+ years does not. It is submitted that what her Honour has done here is to appear to give the offender an appropriate discount for the pleas whilst impermissibly inflating the head sentence."
The first sentence of this submission denotes an absence of understanding of the nature of and the reason for a reduction in sentence attributable to pleas of guilty. Those lie in the utilitarian value of the plea.
A plea may or may not be indicative of remorse or contrition; where, as here, it is entered in the face of overwhelming evidence, it is difficult to draw such an inference. Contrition and/or remorse are more readily seen as an available sentencing consideration where they indicate prospects of rehabilitation - something about which English DCJ was expressly guarded.
It is true that, if the reduction of 25 per cent was applied to the aggregate sentence, the starting point would have been a little over 30 years and 6 months, undoubtedly a very severe sentence. However, the sentencing remarks make it clear that the reduction was correctly applied to each of the individual sentences indicated.
I accept that the sentence ultimately imposed was indeed a very heavy one. However, I am unable to conclude that it was outside the range of sentences legitimately available to the sentencing judge.
I would reject Ground 1 of the proposed appeal.

Ground 2: special circumstances

By this ground, the applicant complains that, although her Honour expressly found special circumstances pursuant to s 44(2) of the Sentencing Procedure Act, the sentence imposed did not truly reflect that finding. The ratio prescribed by s 44(2) between the non-parole period and the head sentence is 75 per cent; a finding of special circumstances permits a sentencing judge to vary that proportion, by reducing the non-parole period. In this case, the non-parole period imposed is almost 74 per cent of the head sentence. That is a very small reduction on the statutory proportions. On that basis, this ground appears to have some superficial substance. However, when regard is had to the reason given for the finding of special circumstances, the concern dissipates. As stated above, the reason given for the finding was the applicant's need for sustained supervision on his eventual release. On any view, if released on the expiration of the existing non-parole period, the applicant will have 6 years at liberty on parole (of which part may not be subject to supervision). In those circumstances, it could hardly be concluded that the underlying reason for the stated finding of special circumstances was undermined.
I would reject this proposed ground.

Ground 3:

On the hearing of the application this ground was abandoned.

Ground 4:

I have set out above the manner in which Ground 4 is framed. It is difficult to understand precisely what the complaint is. Indeed, to the extent that it makes complaint about the manner in which the stated 25 per cent reduction was applied, it has been dealt with in the submissions raised under Ground 1. To the extent that this ground could be seen to complain of failure to give an adequate reduction, it is contrary to the guideline judgment of R v Thomson; R v Houlton. In that case, reductions in the region of 10 per cent to 25 per cent were promulgated as what an offender might reasonably expect, depending upon the relevant circumstances, in particular the timing of the plea. No doubt there will be instances in which a case may be made for a greater reduction, but no suggestion was made that this was one of those. It seems to me that this ground is no more than a repetition of Ground 1.
I would reject Ground 4 of the proposed appeal.
Accordingly, while I would grant leave to appeal, in my opinion, the appeal should be dismissed.
R A HULME J: I agree with Simpson J.

BR Table Victim Offence Date Maximum Penalty SNPP Indicative Possess child abuse material 1/7/11-1/1/12 10 years 2 years s 91H(2) Victim 1 Use child under 14 for production of child abuse material 18/1/12-9/2/12 14 years 6 years 3 years s 91G(1)(a) Produce, disseminate or possess child abuse material 1/1/12-10/2/12 10 years 2 years s 91H(2) Incite person under 16 years to an indecent act being filmed 18/1/12-9/2/12 10 years 3 years s 61O(2A) Aggravated indecent assault on child under 16 years 9/02/2012 10 years 8 years 3 years (NPP 18 months) s 61M(2) Aggravated indecent assault on child under 16 years 18/1/12-9/2/12 10 years 8 years 6 years (NPP 3 years) s 61M(2) Sexual intercourse with a child under 10 years under authority 18/1/12-9/2/12 Life imprisonment 15 years 20 years (NPP 14 years) s 66A(2) Form 1: possess child abuse material; 2 x film act of indecency committed on child under 10 years for production of child abuse material; aggravated indecent assault on child under 16 years; 2 x use child under 16 years for production of child abuse material Sexual intercourse with a child under 10 years under authority 9/02/2012 Life imprisonment 15 years 19 years (NPP 13 years) s 66A(2) Victim 2 Groom child under 14 years for sexual activity 1/7/11-1/7/12 12 years 5 Years 12 months s 66EB(3) and Aggravated (authority) act of indecency on a person under 16 years 1/7/11-1/1/12 5 years s 61O(1) Aggravated indecent assault on child under 16 years 1/7/11-1/1/12 10 years 8 years 2 years (NPP 1 year) s 61M(2) Aggravated indecent assault on child under 16 years 1/7/11-31/8/12 10 years 8 years 6 years (NPP 3 years) s 61M(2) 2 x Use child under 14 years for production of child abuse material 1/7/11-1/1/12 14 years 6 years 3 years each s 91G(1)(a) Aggravated sexual intercourse, child 10-14 years 1/7/11-1/1/12 20 years 9 years 14 years s 66C(2) Form 1: sexual intercourse with child under 14 years; 2 x possess child abuse material; aggravated (authority) act of indecency on a person under 14 years; 2 x aggravated (authority) sexual intercourse on child under 14 years; 2 x indecent assault on child under 16 years; use child under 16 years for production of child abuse material 2 x Aggravated sexual intercourse, child 10-14 years 1/7/11-1/1/12 20 years 9 years 12 years each s 66C(2) Victim 3 Groom child under 14 years 1/7/11-1/1/12 12 years 5 Years 3 years (if under the age of 14) s 66EB(3) Form 1: Indecent assault under 16 years Act of indecency on child under 10 years 1/1/12-1/2/12 7 years 1 year s 61O(2) Act of indecency with a child under 16 years 1/7/11-31/10/11 2 years 18 months s 61N(1) Aggravated indecent assault on child under 16 years 1/7/11-1/1/12 10 Years 8 Years 2 years (NPP 1 year) s 61M(2) Victim 4 Aggravated indecent assault on child under 16 years 1/7/11-31/8/11 10 Years 8 Years 18 months (NPP 9 months) (s 166 certificate) s 61M(2) Incite person under 16 years to commit act of indecency 1/7/11-31/8/11 2 years 12 months s 61N(1) Victim 5 Commit indecency on person under 16 years 15/01/2012 2 years 6 months (s 166 certificate) s 61N(1) Aggravated indecent assault on child under 16 years 15/01/2012 10 years 8 years 18 Months (NPP 9 months) s 61M(2)

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Crimes (Sentencing and Procedure) Act 1999(NSW)

(Crimes Act 1900(NSW)

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