Clarke v R [2009] NSWCCA 49 | Case summary

TUESDAY 17 MARCH 2009 CLARKE, Christopher Reginald v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to the following offences: · Two counts of sexual intercourse with a child under the age of fourteen years in circumstances of aggravation, being under his authority contrary to s 66C(2) of the Crimes Act 1900; · Sexual intercourse with a child under the age of sixteen in circumstances of aggravation, being under his authority contrary to s 66C(4) of the Crimes Act 1900. 2 The maximum penalty for an offence contrary to s 66C(2) is twenty years imprisonment. For an offence contrary to s 66C(4) the maximum penalty is twelve years imprisonment. 3 The applicant was sentenced in relation to the two counts contrary to s 66C(2) to concurrent terms of imprisonment of nine years with a non-parole period of six years. In respect of the s 66C(4) offence he was sentenced to a term of seven years imprisonment with a non-parole period of four years. His total sentence was imprisonment for a period of eleven years with a non-parole period of eight years. 4 The applicant seeks leave to appeal his sentence. Originally the only issue pressed in the appeal, so it was submitted was that the adjustment which his Honour made to the sentences to reflect a finding which he made of special circumstances was inappropriate. However, on the hearing of the appeal a further ground was advanced to the effect that the sentencing judge erred when he identified the maximum penalty for the offence against s 66C(4) as being 14 years imprisonment. It is actually 12 years imprisonment. 5 The offences which the applicant committed were described by the sentencing judge as "not in the worst category of case but falling slightly above the mid-range of objective seriousness for an offence of this type." The applicant's victim was his "step-daughter" who was in his care following her mother's leaving the home to take up with another man overseas. The applicant and the complainant first had sexual intercourse shortly after the complainant's thirteen birthday and a child was conceived. The sexual relationship continued after the child was born and subsequently a further child was conceived. At the time of sentencing the complainant who was aged 16 years of age, was the mother of two children. Because the applicant had secreted the relationship with the complainant the births of the children were not registered and they had not received the usual vaccinations. The effect on the complainant was significant. She had been deprived of her teenage years and schooling during that period. 6 The applicant showed only modest insight into his offending. He described his relationship with the complainant as a "de facto relationship" and said they were engaged to be married. Although he pleaded guilty the sentencing judge found that the plea was not entered at the earliest opportunity and allowed a discount of 15%. His Honour found that, although there was some evidence of contrition, it was difficult to assess the true level of remorse when the applicant maintained that he wished the relationship to continue. 7 The applicant was in custody when sentenced. By reason of the nature of his offences he was placed on protection. The fact that he was at risk was confirmed when on one occasion he arrived at court with facial bruising and other injuries inflicted since his incarceration. The sentencing judge had regard to these matters when determining the sentence. 8 His Honour was mindful of the need to impose a sentence which provided adequately for general deterrence, denunciation and retribution. His Honour found special circumstances of which he said: "Being that at 41 years of age this will be the offender's first time serving a custodial sentence." 9 His Honour's finding with respect to special circumstances was reflected in the individual sentences. However, because of the manner in which his Honour structure the individual sentences the aggregate non-parole period is 72.7% of the aggregate head term. It is about this proportion which the applicant complains. It was submitted that the ultimate sentence reflects only a very minor adjustment for special circumstances. It translates to a three month increase in the period on parole to that provided by the statute for an individual sentence: s 44(2) Crimes (Sentencing Procedure) Act 1999. 10 After careful consideration of his Honour's remarks on sentence I am satisfied that the overall sentence which his Honour imposed and the relationship between the aggregate non-parole period and period on parole was deliberate. The finding of special circumstances almost immediately precedes his Honour's statement of the sentences to be imposed and it must be assumed that his Honour was mindful of the finding which he had made when pronouncing both the sentences and the overall sentence. 11 The appropriate approach when a finding of special circumstances is made has been considered by this Court on a number of occasions. In R v Swan [2005] NSWCCA 252 Rothman J emphasised that when sentencing for multiple offences s 44 of the Sentencing Procedure Act 1999, as amended in 2002, although not irrelevant, does not mandate a relationship between an overall non-parole period and the remainder of the overall sentence. The section is concerned with the relationship between the period of full time custody and the period on parole in relation to each particular offence for which an offender is being sentenced. 12 As I have indicated his Honour's finding of special circumstances was based on the fact that the applicant would be serving a prison sentence for the first time. Reservations have been expressed in this Court as to whether the fact that a person will be in custody for the first time is capable of constituting special circumstances R v Kama (2000) 110 A Crim R 47 (per Spigelman CJ at [10]); R v Kaliti [2001] NSWCCA 268. I have similar reservations. There will be many persons facing a court for sentence who will receive a custodial term for the first time. No doubt where appropriate that fact will be reflected in the sentence which is imposed. But whether for that reason alone a finding of special circumstances is appropriate is doubtful. Most people who have been incarcerated for any period will need assistance in re-establishing themselves in the community and it may be that a repeat offender is in greater need than some one incarcerated for the first time. 13 In the present case as I have indicated, the sentencing judge's finding of special circumstances was reflected in the sentence on each individual count. This Court has explained on many occasions that the extent of any adjustment to the statutory requirement is essentially a matter within the sentencing judge's discretion. In R v Cramp [2004] NSWCCA 264 at [31] Spigelman CJ said that an adjustment for special circumstances "raises so many matters of a discretionary character that this Court should be very slow to intervene." Only if the non-parole period provided is manifestly inadequate or manifestly excessive should this Court intervene: Cramp at [36]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [19]. 14 It is common to find that when an offender is being sentenced for multiple offences the relationship between the period of full time custody and the non-parole causes practical problems. If this arises in the sentencing of an offender, in order to provide an appropriate overall relationship between the period on parole and the overall sentence, a finding of special circumstances may be made. Hunt CJ at CL commented on these matters in R v Simpson (1992) 61 A Crim R 58: see also R v Clissold [2002] NSWCCA 356 and the discussion in R v Cook [1999] NSWCCA 234 and R v Ibrahim [2005] NSWCCA 43. 15 In the present case, leaving to one side the question of the maximum penalty for the offence against s 66C(4) I am of the view that the sentence which his Honour imposed is appropriate. Although the finding of special circumstances led to only a minor adjustment of the statutory ratio with respect to the aggregate sentences I am not persuaded that an error has occurred. I am satisfied that the sentencing judge was mindful of the finding of special circumstances which he made and which facilitated the adjustment of the statutory ratio which his Honour provided. That adjustment was within his sentencing discretion. 16 In his remarks on sentence the sentencing judge identified the maximum penalty for the offence contrary to s 66C(4) as being 14 years. However, during the course of submissions his Honour had been informed that the maximum penalty was 12 years and this was also identified in written submissions provided to his Honour by the Crown. In these circumstances it would seem likely that the identification of 14 years was a slip which was not corrected. 17 In relation to the s 66C(4) offence his Honour imposed a penalty of a non-parole period of 4 years with a total term of 7 years imprisonment. By so doing his Honour made plain that, in accordance with the legislative intent evident from the relevant maximum penalties that a lesser sentence should be imposed for the offence committed when the complainant was aged in excess of 14 years. Although the term of imprisonment imposed by his Honour was significant having regard to the circumstances of the offence and the subjective features of the applicant it was not inappropriate. There can be no doubt that this offence fell above the mid-range of objective seriousness. The applicant engaged in unprotected sex with his step-daughter leading to the conception of a second child. The earlier offences required significant punishment but subjecting his step-daughter to further sexual activity when it was likely that a further child would be conceived was a very serious offence. The criminality was greater than that involved in the earlier offences, although of course the maximum penalty was less. 18 The Crown emphasised that when sentencing the applicant his Honour provided wholly concurrent sentences in relation to the first two counts. They were separate and serious offences and warranted, in my judgment, an identifiable term of imprisonment for each offence. His Honour provided for the partial concurrency of the sentence imposed in relation to the third count with the consequence that in relation to that count the applicant will serve a period of two years in full time custody with the prospect of parole for a further three years. Even if I was persuaded that his Honour was mistaken when identifying the maximum penalty for this offence and that mistake has influenced the sentence. I would not have intervened to alter the period which the applicant will spend in custody or on parole. However, I am not persuaded that having regard to a maximum penalty of twelve years the sentence which his Honour imposed for the third count was excessive. I would have adjusted the relevant dates so that the total period of full time custody and the period on parole were the same as was actually imposed. 19 Although I would grant leave to appeal the appeal should be dismissed. 20 JAMES J: I agree with McClellan CJ at CL. 21 ADAMS J: I agree with McClellan CJ at CL.

Clarke v R

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