BT v R

SOLICITORS: Applicant: S O'Connor Respondent: S Kavanagh

• 15 - IN THE COURT OF CRIMINAL APPEAL 200/5247

McCOLL JA RS HULME J LATHAM J

Tuesday, 23 November 2010 BT v R Judgment 1 McCOLL JA: I agree with RS Hulme J. 2 RS HULME J: On 30 October 2009 this Applicant for leave to appeal was sentenced by Finnane QC DCJ in respect of four charges. The first three alleged that during various periods between 15 March and 1 July 2008 he assaulted and, at the time of each assault, committed an act of indecency upon a girl under the age of 16 years, namely 15 years. The fourth charge was that between 30 April and 1 July 2008 he had sexual intercourse with that girl without her consent, she being then under the age of 16 years, namely 15 years. 3 Finnane DCJ sentenced the Applicant in respect of the first three offences to concurrent terms of imprisonment for 5 years including non-parole periods of 3 years commencing on 30 October 2009 and in respect of the fourth charge to imprisonment for 9 years including a non-parole period of 6 years, both such periods commencing on 30 October 2011. The effective sentence imposed was thus of imprisonment for 11 years including a non-parole period of 8 years. 4 The first three offences constituted a breach of s 61M(1) of the Crimes Act 1900 (NSW) 1900 which, at the relevant time, prescribed a maximum period of imprisonment of 7 years if, so far as is presently relevant, the victim was under the age of 16 or under the authority of the offender. 5 The fourth offence was a breach of s 61J(1) which prescribed a maximum period of imprisonment of 20 years. Circumstances of aggravation listed under s 61J(2) included the victim being under the age of 16, and the victim being under the authority of the offender. 6 Pursuant to s 54A et seq of the Crimes (Sentencing Procedure) Act 1999 (NSW) standard non-parole periods of 5 years and 10 years respectively have been prescribed for offences under s 61M and 61J. 7 The circumstances of the offending were as follows. For some 10 years prior to the time of the offences the Applicant was living in a de facto relationship with the victim's mother. Also in the household were two younger sisters of the complainant and a 6 year old boy who was a child of both the Applicant and the victim's mother. The offending, the subject of the first three charges was constituted by the Applicant going to the complainant's bed while she was asleep and placing his hand down inside her pyjama pants and underwear and touching her in the area of her vagina. The fourth offence was constituted by the Applicant on the last of the occasions just mentioned, placing his finger into her vagina. At the commencement of each assault the complainant was asleep. During the first two occasions, according to her, she pretended to remain asleep until the Applicant stopped and left the room. On the third occasion the victim was spoken to by the Applicant prior to the penetration but the victim was uncertain as to what he said. The penetration lasted for a short time and again the Applicant simply left the room. 8 Some weeks after the last of the offences, the complainant's mother had occasion to become concerned at the Applicant's conduct for other reasons and made enquiries of the complainant whether she had been interfered with. The complainant said she had and it was thus that the offences came to light. There was nothing to suggest that the Applicant had used force, threats or pressure to induce the victim's compliance or silence beyond such pressure as was implicit in his relationship with her mother. A Victim Impact Statement prepared with the assistance of a court support assistant provides an account of suffering of the victim and her family which she attributes to the conduct of the Applicant, suffering said to include, blaming herself, feelings of shame, a breakdown of her relationship with others in the family and bad dreams. The statement concludes with an indication of pride in having spoken out and that the victim has found strength to believe in herself again. 9 Finnane DCJ said that the contents of the statement were similar to what most victims of the instant type of sexual assault talked about; he accepted that what was said was true but it would not cause him to add or lessen the sentence from that which he thought was otherwise appropriate. 10 The Applicant was born in May 1973, has no prior criminal history and is of aboriginal descent. He completed his higher school certificate and for some 10 years prior to 2005 was an officer in the New South Wales Police Force. Subsequently he spent some time working for another Government Department. It would seem he had some conflicts within both of these organisations although there is nothing to suggest that those conflicts reflect adversely on him. His Honour said of the Applicant that, until the commission of the offences against the victim, the Applicant was a man of exemplary good character though, as a former police officer, he must have known just how serious his offences were. Finnane DCJ recorded that the Applicant had pleaded guilty at the first opportunity and was entitled to the maximum discount on that account. 11 A report from a psychologist, Mr Terry Smith, that was admitted into evidence detailed a number of psychological or psychiatric problems that the Applicant has suffered in the past. He has been suicidal on a number of occasions and actually attempted suicide in September 2008 after which he was scheduled. He has been diagnosed at various times with major depression, post-traumatic stress disorder, a borderline personality and to be suffering from bipolar mental illness. It would seem that a cause, or at least a focus, of some of the Applicant's problems was the death of a brother in 2000 which the Applicant thinks was the result of murder. The Applicant's mother said that the Applicant had tried to harm himself a number of times. Notes of a treating psychiatrist made in late 2008 talk of complaints of recurrent suicidal ideation although by February 2009, such thoughts seem to have subsided. 12 The grounds of appeal are:- 1. The sentencing judge erred in finding that the offences were representative of "many other occasions in which similar offences were committed." 2. The sentencing judge erred in failing to take adequately into account the mental illness of the applicant. 3. The sentencing judge erred in the assessment of the objective seriousness of the offences for the purpose of considering the reasons for departure from the standard non-parole period. 4. The sentences individually and in their aggregate are manifestly excessive. 13 Shortly prior to the hearing of the appeal, the Court was notified that the second ground was abandoned.

Ground 1 The sentencing judge erred in finding that the offences were representative of "many other occasions in which similar offences were committed ." 14 At an early stage of his remarks on sentence His Honour referred to the victim being interviewed by police in the manner usually adopted for persons of her age. His Honour went on to say that:- … in that interview she made it plain that the offences that were the subject of the charges occurred at night time when she was asleep and she made it plain that these offences were in a sense representative of many other occasions in which similar offences were committed. 15 Later, when referring to the three incidents the subject of the indecent assault charges, his Honour observed "he did this on numerous occasions but three are charged". 16 These statements by his Honour were wrong. In her recorded interview the complainant had said that "it happened like a few times, like probably like five or six, but I don't know." 17 However, although the fact of error is plain, it is difficult to know what weight his Honour placed on his erroneous understanding of the situation. Had there been the number of instances of offending his Honour believed, that would clearly have been relevant to rebut any suggestion that the offences charged were isolated instances and probably also in forming a view as to the objective seriousness of the offending. His Honour had taken this last mentioned approach in an earlier case which was the subject of an appeal to this Court - SKA v R [2009] NSWCCA 186. His Honour mentioned that decision in his remarks in terms that indicated he was very conscious of it and of the fact that the Court had doubled one of the sentences he had imposed on SKA. In the course of her reasons, Simpson J, with the concurrence of the other members of the Court had, at [171], observed without criticism that his Honour had taken the fact that offences were representative into account on the question of where they fell on the scale of objective gravity. 18 On the other hand, Finnane DCJ did not refer to the topic at the time of expressing a judgment as to where on the range of objective seriousness the assault offences fell although when indulging in a similar exercise in respect of the intercourse offence he did observe "this was the only occasion it happened". 19 His Honour's assessment of the objective seriousness of the offences occurred towards the end of his remarks and after he had summarised the evidence before him, both as to the circumstances of the offences and the circumstances of the Applicant. All his Honour said in the course of the assessment was:- As far as the indecent assault offences are concerned I would assess them as mid-range offences. Placing a finger on the outside of the vagina and rubbing it, inside the pants of a sleeping girl, I would have thought would make the offence one of at least mid-range seriousness. She is not in a position to resist or do anything because she was asleep at the time each of these offences was committed. On the other hand, the offence of aggravated sexual intercourse without consent I would assess as less than a mid-range offence because in the circumstances of this case, whilst he placed the finger into her vaginal area and I would accept that it was the vaginal area he penetrated, he withdrew it quickly and this was the only occasion it happened. It cannot be compared to penetration with a penis or fellatio or cunnilingus which, in my opinion, would normally be at least mid-range offences. I do not go so far as to say that placing a finger into a vagina could never be a mid-range offence but this particular offence was not. I take into account that he pleaded guilty at the earliest opportunity. In my opinion, there should be some degree of accumulation for these offences. I find special circumstances because this is the first time he has ever faced being in custody. 20 As I have said, it is difficult to know what weight his Honour placed on his erroneous understanding of the number of uncharged offences the Applicant had committed, a difficulty contributed to by brevity of these remarks. Forced to a decision however, in light of both his Honour's approach in SKA v R and the his reference in this case to "the only occasion" when dealing with the sexual intercourse, I think the probability is that his Honour did take his mistaken view into account in assessing the objective gravity of the assault offences. 21 It was also submitted on behalf of the Applicant that, even if his Honour took into account uncharged offending merely to deny a claim of mitigation to the Applicant on the basis that the charge offences were isolated incidents, his Honour was obliged to identify the extent of the uncharged conduct and the period over which it occurred in order to properly determine the degree of any leniency which should be denied. While there is undoubtedly merit in the submission, in the circumstances of this case, it does not carry the Applicant far. The fact of the three charged occasions of indecency and at least two more is sufficient to demonstrate that the Applicant's conduct was not simply a limited number of isolated incidents.

Ground 3 The sentencing judge erred in the assessment of the objective seriousness of the offences for the purpose of considering the reasons for departure from the standard non-parole period. 22 In support of this ground attention was drawn to the limited number of factors his Honour mentioned at the time of expressing his conclusions as to the objective seriousness of the offences. It was pointed out that in Eedens v R [2009] NSWCCA 254 at [25], Howie J had remarked, with the concurrence of the other members of the Court, that the assessment of the objective seriousness of sexual intercourse offences is not determined by the nature of the intercourse. Reference was made to R v MLP [2006] NSWCCA 271 at [22] and to R v KNL (2005) 154 A Crim R 268 at [42-43] where Latham J, with the concurrence of the other members of the court, had remarked in the context of an offence of sexual intercourse with a child aged between 10 and 16:- … however, it is also the case that, in terms of the position occupied by a given offence on the spectrum of offences of this kind, the younger the child, the more serious the offence; R v T (1990) 47 A Crim R 29. The complainant was just over 12 years of age. She was closer to 10 than she was to 16, yet that feature of the offence was largely disregarded, in favour of the mitigation constituted by the Respondent's mistaken belief as to her age. 23 The court was also referred to R v AJP [2004] NSWCCA 434 at [25] where Simpson J, with the concurrence of Howie and Adams JJ observed:-

Other appropriate areas of enquiry in consideration of the objective seriousness of a s 66A offence are, for example, how the offences took place, over what period of time, with what degree of force or coercion, the use of threats or pressure before or after the offence to ensure the victims' compliance with the demands made, and subsequent silence, and any immediate apparent effect on the victim. … 24 It should be acknowledged that in the context of offences by persons in positions of authority over their victims, the absence of force or threats, at least force or threats directed to facilitating the commission of the offence, may have much less, and perhaps little, weight than in the case of offenders not in such a position - see R v Woods [2009] NSWCCA 55 at [52 - 53] - but nevertheless the presence or absence of a number of the factors mentioned in R v KNL and R v AJP are matters of relevance which Finnane DCJ simply ignored. 25 In these circumstances, his Honour's assessment of the objective seriousness of the offences miscarried. A fortiori is this so if, as I think, his Honour also took into account his erroneous understanding of the number of uncharged offences. 26 There is another factor, not mentioned by counsel, that also argues for error on the part of his Honour. In the course of his finding, quoted in [19] above that the indecent assaults fell into the mid-range, his Honour referred to the Applicant having been rubbing the outside of the victim's vagina. In relation to the indecent assault offences the Statement of Facts referred only to the Applicant "touching". In the transcript of the victim's interview, she said in answer to question 42 that "then he would be like feeling me and stuff, like putting his hand down my pants and that's all and then I woke up and he said, reckoned (sic) that I was having sex and he put his finger in me and that's all". Questions and answers 237 and 238 were in these terms:- Q. … When he, when Brad put his hand in your pants on your vagina, did he, did he do anything while his hand was there? A. No. Q. Did he move it around or was it still or something else or ---? A. I think it was just still. 27 Particularly in light of the victim's later answers, it is not clear that the reference to "feeling me" extended to any occasion other than the one on which the Applicant had intercourse. There was no other direct evidence of the Applicant having rubbed the victim's vaginal area and though one may think it unlikely that the Applicant would not have done so, his Honour's finding of "rubbing", which would have had to be a finding beyond reasonable doubt, was not justified by the evidence.

Ground 4 The sentences individually and in their aggregate are manifestly excessive . 28 The objective circumstances necessary to decide this ground and any re-sentence are sufficiently set forth above. I should add something more to what I have said concerning the Applicant's subjective situation. 29 His Honour observed that the Applicant had expressed remorse and there was "at least some chance that he would not commit offences of this type again". The remorse was expressed in a letter the Applicant wrote that was tendered and the Applicant's mother gave evidence that the Applicant had expressed similar feelings. His Honour accepted that the remorse was genuine. The Applicant's mother also said that the Applicant had tried to harm himself a number of times. She was not cross-examined. 30 The psychologist to whose report I have already referred directed attention to the extent to which the Applicant's symptoms interfered with his capacity to form reasoned judgments at the times of his offending. He went on to say that the Applicant had described repeated cycles of hypomania a condition in which, according to the psychologist, one's sense of self, self-worth, abilities and insights are so elevated that they completely overvalue the normal range of opinions and judgments. Mr Smith went on:- Elevated opinions of self, their rights and power often occur and can grossly impair relationships… The only reasonable explanation for his actions is that his judgments were affected by his mental status at the time. 31 However, these conclusions were based on a version of the offending given by the Applicant that was radically different from that contained a statement by the victim's mother, the transcript of the police interview of the victim and in the Statement of Facts that were tendered by the Crown without objection. As he was well entitled to do, his Honour recorded that he accepted the Statement of Facts as the correct version. It followed that his Honour was justified in saying, as he did, that it is not clear what effect the Applicant's mental disorder had on his offending. It is likely that the difference between the Applicant's account of the offending and the version his Honour accepted also contributed to the somewhat qualified remark of his Honour that, "there is at least some chance that he would not commit offences of this type again". 32 His Honour did indicate that he took into account that the Applicant had a mental disorder although the remarks on sentence do not indicate to what degree. Although there was no evidence as to the likely effect of imprisonment on the Applicant, in light of the extent of the disorder and the Applicant's past suicidal tendencies, having regard to the factors mentioned in R v Hemsley [2004] NSWCCA 228 at [34-35], in my view the degree should not have been insignificant. 33 When account is taken of the discount for the Applicant's plea, the sentence of 9 years including a non-parole period of 6 years for the sexual intercourse offence indicates his Honour's starting points for this sentence must have been 12 years and 8 years and this for an offence his Honour characterised as less than mid-range. His Honour did not, as this Court on numerous occasions has said he should - see R v Knight and Biuvanua [2007] NSWCCA 283 at [4], [39]; R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [25], [39]; R v Woods [2009] NSWCCA 55 at [35]; R v McEvoy [2010] NSWCCA 110 at [75]; R v Sellars [2010] NSWCCA 133 at [8], [11] - indicate a view as to the degree the offence fell below mid-range but the matters to which I have referred indicate that in objective seriousness it was low on the scale of offences against s 61J. In saying that, I do not of course mean to suggest that the offence was not serious - all instances of sexual intercourse without consent are - but merely that by comparison with offences that can be committed against that section, the Applicant's offence was very substantially below the mid-point in objective seriousness. Without intending to be exhaustive, the victim was but one year short of 16, the penetration was of short duration and being digital did not result in the fears or actuality of pregnancy or disease that penile penetration may have presented. The Applicant was in a position of authority but there was no actual or threatened violence or deprivation of liberty. 34 There were also the Applicant's subjective circumstances to take into account and, although it no doubt reflected some of these, his Honour's finding of special circumstances. Although in light of his Honour's errors to which I have referred it is unnecessary for me to go as far, looking at the total picture it is clear that the sentence imposed for the sexual assault offence is manifestly excessive. 35 By comparison with the 20 years maximum term and the standard non-parole period of 10 years for the sexual intercourse offence, his Honour's starting points before allowing a discount for the Applicant's plea should not have exceeded 6 to 7 years for the full term and 4 to 5 years for the non-parole period. After allowance for that plea, a sentence of 5 years, including a non-parole period of 3 years, is appropriate. 36 In arriving at this conclusion I do not ignore the decision in SKA v R [2009] NSWCCA 186, a decision that, as I have indicated, seems to have much influenced his Honour. That case was a Crown appeal in which, for an offence that in some respects was very similar to the sexual intercourse offence of the Applicant, this court imposed a sentence of 12 years including a non-parole period of 8 years. SKA had pleaded not guilty and it may not be a coincidence that if one applies to these figures the discount to which the Applicant is entitled, one arrives at the figures of 9 years with a non-parole period of 6 years that was the sentence imposed on the Applicant for his sexual intercourse offence. 37 The report of that case does not provide as much detail as is before this Court in respect of the Applicant's offending although one has the impression that, in the sexual intercourse, SKA was to some degree more persistent than was the Applicant. It does appear that the frequency of SKA's offending indicated a higher degree of objective gravity but SKA indulged in no force or violence, threat or admonition to silence on the part of the complainant and SKA was of good character. 38 However, there were other significant differences between the 2 cases. The charge in SKA was brought under s 66A of the Crimes Act which proscribes sexual intercourse with a child under 10 and carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 15 years - periods respectively 25% and 50% higher than those prescribed for the Applicant's offence. SKA's victim was aged 8 years at the time. While it must be recognised that the sentence imposed by this Court on SKA reflected considerations of double jeopardy, these differences argue for a significantly lower penalty than Finnane DCJ imposed. 39 For completeness I should also make reference to the statistics for offences under s61J. Although I have previously remarked, with the assent of Hoeben J, that the sentences reflected in these statistics strike me as on the low side - see Pappadopoulos v R; Topcou v R [2007] NSWCCA 274 at [191-192] - they show that of 44 offenders dealt with in the period February 2003 to June 2009 who pleaded guilty and in respect of whose offending the standard non-parole period applied, the maximum sentence imposed was 12 years (suffered by 4 offenders) and the median sentence imposed was of 6 years (imposed on 10 offenders). The highest non-parole period fixed was 9 years and the median non-parole period was between 3½ and 4 years. 40 I have indicated that in arriving at his conclusion that the indecent assaults were mid-range offences, his Honour failed to take into account a number of factors that were relevant. This Court is accordingly entitled to make its own assessment of that issue free of the limitations referred to in cases such as R v Mulato [2006] NSWCCA 282 at [37]. When regard is had to all of the relevant factors, I am unable to agree with his Honour's conclusion that the Applicant's indecent assaults fell into the mid-range of objective seriousness. Certainly in the case of the first two incidents charged, so far as the Applicant was concerned, the victim was asleep and thus not liable to suffer the same feeling of personal indignity and affront as if she had been awake. There was voluntary desistance. On the third occasion the victim did wake but very shortly thereafter the intercourse for which the Applicant is being separately punished occurred and I do not see in the slight difference in circumstances of the indecent assaults sufficient grounds to impose a different penalty for this third indecent assault from the penalty imposed on the other two. 41 Sentencing for offences under s61M is difficult because of the absurd relativity between the 7 years maximum term and the very high standard non-parole period of 5 years for a case in the mid-range of objective seriousness. If the proportions envisaged by s 44 of the Crimes (Sentencing Procedure) Act were adhered to, such a non-parole period would be appropriate for a head sentence of 6 years and 8 months, a sentence that in accordance with long-standing sentencing principles would be imposed only for an offence falling very close to a worst case of an offence under s 61M. 42 Indeed, when account is taken of the discount the Applicant was entitled to for his pleas, the starting points for the head sentences of 5 years his Honour imposed for the indecent assaults bespeaks a starting point of 6 years and 9 months, a figure so high as to demonstrate error. 43 Again, consideration has to be taken of the Applicant's subjective circumstances. In my view an appropriate sentence for each of the indecent assault offences, and after taking account of the Applicant's plea is 3 years including, given the finding of special circumstances, a non-parole period of 2 years.

Accumulation 44 A further matter to which regard must be had is the degree of accumulation involved in the sentences his Honour imposed. His Honour found special circumstances but the 8 years effective non-parole period he imposed is approximately 72.7% of the total 11 years sentence. That is hardly a significant reduction from the usual 75%. However, in light of my view that the sentences imposed by Finnane DCJ must be set aside I need not pursue this topic further. 45 On grounds of totality, there should be both a degree of accumulation and a degree of concurrency in the sentences I propose. The orders this Court should make are: (i) Appeal allowed; (ii) Quash the sentences imposed by Finnane DCJ on the Applicant; (iii) In respect of each of the offences of assault accompanied by an act of indecency, sentence the Applicant to imprisonment for a non-parole period of 2 years commencing on 30 October 2009 together with a further term of 1 year; (iv) In respect of the offence of sexual intercourse without consent, sentence the Applicant to imprisonment for a non-parole period of 3 years commencing on 30 October 2010, together with a further period of 2 years; and

(v) Record as the date upon which it appears to the Court that the Applicant shall become eligible for parole, 30 October 2013.

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.