Bravo v R

Court of Criminal Appeal (NSW)|2015-11-30|Before: Beazley P, Johnson J, Hulme J

Solicitors: Dignan & Hanrahan Solicitors Solicitor for Public Prosecutions File Number(s): 2013/110900 Decision under appeal Court or tribunal: District Court Date of Decision: 17 October 2014 Before: English DCJ File Number(s): 2013/110900

Judgment

BEAZLEY P: I agree with the reasons of Justice R A Hulme and with the orders he proposes.
JOHNSON J: I agree with the reasons given by Justice R A Hulme that leave to appeal against sentence should be granted but the appeal should be dismissed.
R A HULME J: The applicant was sentenced by her Honour Judge English in the District Court at Penrith on 17 October 2014 in respect of child sexual assault offences to an aggregate term of imprisonment of 22 years with a non-parole period of 16 years with effect from 23 May 2014.

The applicant was found guilty of these offences at trial. The jury was not required to return a verdict on count 4 as it was in the alternative to count 3. Verdicts of not guilty were returned in respect of counts 9 and 10.

Facts

The applicant commenced a relationship with the victim's mother when the victim was 2 years of age in 2004. He married the mother in 2006.
The matter came to light when the complainant informed her mother on 9 April 2013 when she was 11 years of age, that the applicant had been sexually abusing her. The applicant was confronted and denied it. The complainant was interviewed by police that evening and disclosed the following details about the offences for which the applicant was ultimately convicted.

Offences in 2011 when victim aged 9

Counts 1 and 2: This event represented the first occasion when the applicant had assaulted the victim. She was watching a movie and the applicant laid beside her and started kissing her. She described the kisses as "long in duration and tongue kisses". The applicant then removed their clothing and continued kissing her and squeezed her bottom. He then got up and went to his bedroom.
Count 3: The next occasion the applicant assaulted the victim was when she went into his bedroom to say goodnight one evening when her mother was working. He got her to lie on the bed, kissed her, and removed their clothing. Using some lubricant he then penetrated her vagina with his penis. The victim was too scared to ask him to stop.
Counts 5 and 6: The next incident occurred in almost identical circumstances but involved the applicant simulating vaginal intercourse with the victim in his bed. The applicant then turned the victim over and had anal intercourse with her. She said that it hurt but was too scared to tell him to stop.

Offences in 2012 when victim aged 10

Count 7: The victim went into the applicant's bedroom to say goodnight and when she went to leave he dragged her back and asked for "a proper kiss". She kissed him on the cheek and then agreed to give him a hug. He then put her onto the bed and had anal intercourse with her. When she later went to the toilet she said she saw a "creamish" colour fluid came out of her bottom which she thought was "maybe a sperm".
Count 8: This was another occasion in 2012 and involved the victim kissing the applicant goodnight. He took her to his bedroom, removed their clothing and rubbed his penis against her "front part". He suggested she sleep with him that night (her mother was again at work) but she wanted to sleep in her own bedroom. He went with her to her bedroom and there rubbed his penis against her vagina.

Offences in February-March 2013 when victim aged 11

Counts 11-14: Count 11 involved the applicant rubbing his penis against the victim's vagina whilst in his bedroom. Count 12 involved digital penetration of her anus and count 13 involved insertion of his penis. The applicant left the room but when he returned he "tongue kissed" her and then digitally penetrated her vagina (count 14). She told him that it hurt and he withdrew. She put her clothes back on and went to bed.
There were uncharged acts of sexual abuse as well which involved inappropriate acts of kissing.

Remarks on sentence

The judge made reference to a number of matters pertinent to sentencing including: The applicant abused his position of trust by sexually assaulting a young girl over a lengthy period of time such that it became almost normal to her. He took advantage of her vulnerability while her mother was absent from the family home. The victim took steps on many occasions to try to dissuade the applicant from assaulting her but to no avail. The victim had been deprived of a normal childhood; having been violated in the most heinous of ways by someone who she should have been able to love unconditionally and to trust. The victim was entitled to grow up in a loving and supportive environment free from sexual molestation. Her home should have been a sanctuary where she felt safe and secure. The family had been torn apart. The victim had been deprived of the relationship with her mother and half-sister. Fortunately she had the love and support of her biological father and his family. There was no violence; but there did not need to be. A callous exercise of willpower and authority overcame this young child. The applicant had shown no remorse. He had not demonstrated any awareness of the impact his offending behaviour had upon his victim. The applicant was otherwise of relatively good character. His criminal antecedents were minor. But having regard to the repeated nature of the offending over a lengthy period of time, this would be given less weight in the circumstances. The applicant had said in a letter to the court that he was on protection but he was able to participate in activities and attend courses. He expressed a willingness to undergo a "deniers program for sexual offenders". Unless the applicant attended and committed to sexual offenders' counselling, his rehabilitation prospects were guarded.
The judge said that the most serious offence was the act of penile/anal penetration with ejaculation. That matter "falls at the midrange" and "I can see no reason why I should depart from applying the standard non-parole period in the circumstances".
The offences in counts 1 and 2 were "not so serious as to warrant the imposition of fulltime custodial penalties were it not for the other offences committed by this offender".
"The act of placing his penis into the genital area of the victim but not penetrating her is a serious example of an aggravated indecent assault" which "falls below the midrange which would attract a standard non-parole period of 8 years".
"The acts (sic) of penile vaginal intercourse are of course also objectively serious but given the facts, is not as serious as the act (sic) of penile/anal intercourse."
Her Honour acknowledged the need for care in accumulation "because of the compounding impact of long sentences". She said, "Sentences should not crush any hope or desire for rehabilitation that a prisoner might belatedly feel".
Special circumstances were found so as to provide for a longer parole period because of the accumulation of sentences; that this would be the applicant's first time in custody; and the need for rehabilitation upon release.
Her Honour expressed a need for a significant element of general deterrence in relation to offences of this type. There was a need for the applicant and the community to "understand that such crimes will be met with stern and retributive punishment". She referred also to the need to denounce what the applicant had done, to recognise the harm done to the child, and to protect the community from him.

Ground The sentencing judge patently erred with respect to the indicative sentences resulting in the sentencing miscarrying

Applicant's submissions

The applicant's counsel contended that the following errors were patent in the specification of some of the indicative sentences: Counts 1 and 2: Her Honour said that these offences did not of themselves warrant a custodial sentence. Yet she determined that because of the subsequent offending which demanded a custodial sentence, it was necessary to impose custodial sentences for counts 1 and 2. Count 6: In concluding this offence fell within the middle range of objective seriousness, her Honour was mistakenly of the view that it involved the applicant ejaculating. It would appear that her Honour when considering the standard non-parole period with respect to counts 3 and 6 had conflated the objectively more serious facts represented by count 7. Count 6: Further, her Honour gave the prescribed standard non-parole period determinative significance by asking herself whether there were reasons to depart from it, contrary to Muldrock v The Queen [2011] HCA 39; 244 CLR 120. Counts 7 and 13: Her Honour indicated a sentence the equivalent of the maximum penalty notwithstanding an implicit finding of mid-range criminality.
It was submitted that these errors would necessarily have impacted upon the final aggregate sentence.

Crown response

The Crown contended that her Honour did not err in relation to the indication of sentences of imprisonment in respect of counts 1 and 2. They might have warranted non-custodial sentences if they stood alone but they were not isolated offences and represented part of a "grooming" process for the more serious offences.
The Crown accepted that her Honour erroneously regarded the offence in count 6 (s 66A(2)) as "the most objectively serious" because it involved anal intercourse with ejaculation. She found it fell within the midrange and warranted application of the standard non-parole period. In fact, it was count 7 that involved such intercourse with ejaculation but that was an offence contrary to s 66C(2) for which no standard non-parole period applied.
The Crown contended, however, that the misstatement of ejaculation in relation to count 6 would have made little, if any, difference in the determination of the indicative sentence.
Whilst accepting the conflation of the facts of count 7 with that of count 6, the Crown resisted such a conclusion in relation to the other offence of anal intercourse in count 3. Nothing in the judge's sentencing remarks supported the applicant's proposition.
The Crown conceded that there was error in the judge specifying indicative sentences for counts 7 and 13 which equated to the maximum penalty. They were not in the worst category of this type of offence and the judge said nothing to suggest that she thought they were.
The Crown also conceded that there was "Muldrock-error" in relation to count 6.

Conclusion

I accept the Crown's submission that there was no error in relation to the indication of 1 month sentences for counts 1 and 2. Moreover, it cannot be thought that if there was such error in the specification of those indicative sentences there was any practical impact upon the assessment of the aggregate sentence. An appeal, of course, is against the sentence imposed, in this case an aggregate sentence; there is no appeal against indicative sentences: JM v R [2014] NSWCCA 297 at [40] (propositions 11 and 12).
There was error in attributing the ejaculation that occurred in the count 7 offence to count 6 which clearly affected the judge's assessment of the seriousness of count 6.
The contention that the judge also erroneously took ejaculation into account in relation to the count 3 offence is not borne out by anything the judge said.
The applicant's submissions, and the Crown's concessions, as to the specification of indicative sentences at the level of the maximum penalty for counts 7 and 13 should be accepted. So too should the submission and concession as to "Muldrock-error" in relation to count 6. The High Court was clear in Muldrock (at [25]): "The court is not required when sentencing for a Div 1A [standard non-parole period] offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the midrange of objective seriousness."
In assessing the sentences for counts 7 and 13 the judge was "obliged… to take into account the full range of factors in determining the appropriate sentence for the offence" while being "mindful of two legislative guideposts: the maximum sentence and the standard non-parole period" (Muldrock at [27])

Re-sentencing

Error having been established, there is a need for this Court to exercise the sentencing discretion afresh in order to determine whether some other sentence whether more or less severe is warranted and should have been passed: s 6(3) of the Criminal Appeal Act 1912 (NSW) and Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42].

Applicant's submissions

Counsel for the applicant submitted that a sentence "significantly less substantial" should be imposed when regard is had to the following matters: 1. Counts 12 and 14 involved digital penetration which was a less serious matter than penile penetration. 2. Counts 3 and 6 involved sexual intercourse with a child under the age of 10, but the victim was only just under that age. This type of offence can also concern infants and toddlers. 3. There was no evidence of the use of physical violence. If present, this would be an aggravating factor pursuant to s 21A(2)(f) of the Crimes (Sentencing Procedure) Act. 4. There was only a limited degree of actual physical pain and for a relatively short duration during some of the offences. 5. Aside from the obvious humiliation in the commission of the offences, there were no other circumstances of humiliation. 6. Sexual offences against children are frequently accompanied by threats to the well-being of the child and frequently to other persons that they love. There was no evidence of that in this case. 7. This was not a case in which pain and distress to a victim is immediately evident to the perpetrator who continues the offending behaviour nonetheless.

Crown submissions

The Crown submitted that each of the offences, aside from those in counts 1 and 2, were serious crimes as is reflected in the prescribed maximum penalties: imprisonment for 10 years, 20 years and life. There were also significant standard non-parole periods that had to be considered as additional guideposts.
Reference was made to R v Gavel [2014] NSWCCA 56 where the Court (Leeming JA, Johnson and Hall JJ) said: "[87] The maximum penalties and standard non-parole periods are important legislative guideposts for the purpose of sentence: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 132 [27]. This is particularly so with respect to the three s 66A(2) offences, each of which carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. [88] A further feature is relevant to the s 66A(2) offences. As a result of statutory amendments in 2009, the maximum penalty for this offence was increased from 25 years' imprisonment to life imprisonment. [89] The fixing of a maximum penalty of life imprisonment for an offence under s 66A(2) was done 'in recognition of the heinousness of committing such an aggravated offence against a child under the age of 10 years' (second reading speech of the Attorney General for the Crimes Amendment (Sexual Offences) Bill 2008, Hansard, Legislative Council, 26 November 2008). In the course of the second reading speech, the Attorney General stated that the sentence increase contained in s 66A(2) was recommended in the 2008 Report of the NSW Sentencing Council entitled 'Penalties Relating to Sexual Assault Offences in New South Wales'. [90] It is well established that the increase by the legislature in the maximum penalty for conduct proscribed by s 66A(2) must be reflected in the sentences which trial courts impose: R v Jurisic (1998) 45 NSWLR 209 at 227; R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [52]; Muldrock v The Queen at 133 [31]; Leslie at 144-145 [79]. [91] As Beech-Jones J observed with respect to s 66A(2) in GN v R at [86], 'a maximum term of life imprisonment is the most emphatic statement of the seriousness of the offence that the legislature may make'. McCallum J noted in PK v R at [4] that 'aggravated sexual intercourse with a child under ten is among the most serious of criminal offences in this State'."
The Crown submitted that when all relevant matters were assessed by this Court the conclusion would be reached that nothing less than that imposed at first instance was warranted.

Determination

Care is required in relation to the contention that counts 12 and 14 were less serious because they involved digital as opposed to penile penetration. As a general proposition that is not necessarily the case. As was observed in R v Gavel : "[97] … It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34]."
However, in this case it would be appropriate to regard the offences in counts 12 and 14 as being less serious than the other sexual intercourse offences (counts 3, 6, 7 and 13) that involved penile/vaginal or penile/anal penetration.
In oral submissions, counsel for the applicant emphasised that there was an absence of statutory (s 21A(2) Crimes (Sentencing Procedure) Act) or other aggravating circumstances in support of a submission that the offending was "low to midrange". Arguably, some of the offences might fall below the middle of the range, but not all of them do.
That counts 3 and 6 involved intercourse with a 9 year old where the offence in s 66A(2) can be committed against a child of any age under 10 is not a mitigating factor. Similarly, the absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, "the offence is less serious because it could have been more serious". As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452: "[3] It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse."
A similar response must be made concerning the submission that the applicant did not persist with offending in the face of evident pain and distress displayed by the victim. There is nothing to suggest that the applicant was not fully aware of the gross acts of abuse he was perpetrating against a young child. He took advantage of the fact that because of her innocence and lack of comprehension of the heinous wrong that was being done to her she did not complain which allowed him to continue his abuse over a substantial period of time.
Whilst I would not necessarily adopt all of the language used by the learned sentencing judge in describing the dimension of the applicant's crimes see above (at [16]), I am in respectful agreement with the sense of it.
It is appropriate to again refer to R v Gavel for its succinct statement as to the effect upon children of offences of this type: "[110] This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the 'long term and serious harm, both physical and psychological, which premature sexual activity can do'. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39]. [111] This factor no doubt contributes to the setting of the heaviest maximum penalty known to the criminal law for s 66A(2) offences, accompanied by a standard non-parole period of 15 years. It is important that sentences for s 66A(2) offences reflect this grave element implicit in the offence itself. [112] This is an important feature in the present case. Young child victims are especially vulnerable. It is important that sentences passed for s 66A(2) offences recognise the harm done to the victim of the crime: s 3A(g) Crimes (Sentencing Procedure) Act 1999."
The applicant had very little to offer in terms of subjective mitigating factors. His prior good character must be taken into account. I would agree with the primary judge's assessment that his rehabilitation prospects are guarded and very much dependent upon his engagement with sexual offender treatment programs. His prospects of success would be enhanced if he acknowledged his wrongdoing; something he is presently not prepared to do.
I consider that nothing other than a term of imprisonment is appropriate for counts 1 and 2 having regard to their objective seriousness and the unavailability or lack of utility in other sentencing options. The assessment of objective seriousness for these offences is informed more by the offences forming part of the grooming and sexualisation of the child than the acts involved.
There is no requirement to specify non-parole periods for indicative sentences where a standard non-parole period does not apply: JM v R at [39] (proposition 7). Moreover, whilst it seems to be often done, there is no practical purpose served in doing so. And I would certainly not engage in a process of setting indicative sentences at the level of what might otherwise have been the non-parole period as was done in McIntosh v R [2015] NSWCCA 184 for the reasons expressed in the comment on that case in Criminal Law News (2015) 22(8) Crim LN [3572].
I assess the appropriate indicative sentences for each of the offences as set out in the following table. Count Offence Statutory provisions Indicative sentence 2011 - Victim aged 9 s 61M(2) 1 Aggravated indecent assault (kissing on the lips) Max 10 years 1 month SNPP 8 years s 61M(2) 2 Aggravated indecent assault (squeezing bottom) Max 10 years 1 month SNPP 8 years s 66A(2) 15 years 3 Aggravated sexual intercourse with child under 10 (penile/vaginal penetration) Max Life NPP 11 years 3 months SNPP 15 years s 61M(2) 5 years 5 Aggravated indecent assault (penile contact with genital area) Max 10 years NPP 3 years 9 months SNPP 8 years s 66A(2) 15 years 6 Aggravated sexual intercourse with child under 10 (penile/anal penetration) Max Life NPP 11 years 3 months SNPP 15 years 2012 - Victim aged 10 7 Aggravated sexual intercourse with child between 10 and 14 (penile/anal penetration with ejaculation) s 66C(2) 10 years Max 20 years s 61M(2) 5 years 8 Aggravated indecent assault (penile vaginal contact) Max 10 years NPP 3 years 9 months SNPP 8 years 2013 - Victim aged 11 s 61M(2) 5 years 11 Aggravated indecent assault (penile vaginal contact) Max 10 years NPP 3 years 9 months SNPP 8 years 12 Aggravated sexual intercourse with child between 10 and 14 (digital penetration of anus) s 66C(2) 8 years Max 20 years 13 Aggravated sexual intercourse with child between 10 and 14 (penile/anal penetration) s 66C(2) 9 years Max 20 years 14 Aggravated sexual intercourse with child between 10 and 14 (digital penetration of vagina) s 66C(2) 8 years Max 20 years

I would not find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act. The reasons given by the primary judge (accumulation, first time in custody, need for rehabilitation after release) do not persuade me that the period I would allow for parole by following the statutory ratio would be inadequate.
Having regard to those individual sentences I am mindful of the need to make an assessment of the totality of the applicant's criminality. The aggregate sentence I would impose is no less than that imposed by the judge at first instance.

Orders

I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.

Amendments 01 December 2015 - [46] word deleted 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: 01 December 2015

Crimes Act 1900(NSW)ss 61M, 66A, 66C

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