Clarke v Regina

R v MAK [2005] NSWCCA 369 De Rosa v Western Australia [2006] WASCA 57; (2006) 162 A Crim R 344 R v Youkhana [2004] NSWCCA 412 R v Wickham [2004] NSWCCA 193 CASES CITED : Siganto v The Queen (1998) 194 CLR 656 House v The King (1936) 55 CLR 499 Lovell v Lovell (1950) 81 CLR 513 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 R v Zamagias [2002] NSWCCA 17 Regina v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

PARTIES: Mathew Peter Clarke (Appl) Regina (Resp/Crown)

COUNSEL: M Licha (Appl) J Girdham (Resp/Crown)

SOLICITORS: Toronto Legal (Appl) S Kavanagh (Resp/Crown)

IN THE COURT OF CRIMINAL APPEAL 2008/1221

GROVE J BLANCH J KIRBY J

Friday 13 February 2009 Mathew Peter CLARKE v REGINA Judgment 1 GROVE J: I agree with Kirby J. 2 BLANCH J: I agree with Kirby J. 3 KIRBY J: On 21 April 2008, Mathew Peter Clarke (the applicant) was arraigned before Coolohan DCJ and a jury on a charge of aggravated indecent assault (contrary to s 61M(1) Crimes Act 1900) (maximum penalty; imprisonment 7 years). The circumstance of aggravation was that the victim was a young woman less than 16 years old. Mr Clarke pleaded not guilty. On 23 April 2008, after a short trial, the jury returned a verdict of guilty. On 18 June 2008, Coolohan DCJ sentenced Mr Clarke to imprisonment with a non parole period of 12 months (18.6.2008 to 17.6.2009), the balance of the term also being 12 months (expiring 17.6.2010). Mr Clarke seeks leave to appeal against that sentence. 4 Before going to the notice of appeal, I should first describe the circumstances in which the offence was committed.

The incident. 5 The complainant was a young woman aged 14½ years. Her half sister was the partner of Mr Clarke. Mr Clarke and his partner had been together for about six years. There were three children and his partner was pregnant. The complainant and her siblings were in the habit of visiting the household and sometimes staying overnight. On 23 January 2007, the complainant and her older brother (aged 17) went to the home of Mr Clarke and their sister. The brother was with a friend. Mr Clarke, his partner's brother and the friend began drinking. The complainant occupied herself with the children. After the children had fallen asleep, the complainant also went to sleep in the same room. His Honour, in his remarks, described what then happened in these words: (ROS 3) "She said that she woke up with the offender touching up her nightie trying to get into her undies. She said that he was 'just groping me and then touched my boobs, like got inside my like bra and my top'. The victim told the offender to get out and threatened to hit him if he did not get off her. She said that the offender asked to give her a kiss to which she replied, 'No you are my sister's boyfriend, get out now'. The victim said that at the time she was wearing a blue nightie with underpants and a bra. She said that the offender touched her on the outside of her underpants but on the inside of her bra squeezing her left breast. The offender left the bedroom and the victim went and woke her brother. She wanted to go home but he had been drinking, so she stayed with him that night, and went home the next morning. She told her mother and the matter was duly reported to police." 6 His Honour added: (ROS 3) "In cross examination, when questioned about the area of or near her vagina which she said was touched by the offender, she described it as being just down from where 'your undies go near your belly and just up from the clitoris'. She was asked a question, 'So was that on your pubic area?', answer, 'Yes, yes'. She confirmed that it was on the outside of her underwear." 7 His Honour determined that there were two circumstances of aggravation. First, the assault was a breach of trust (s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999) ("the Act"). Secondly, as a consequence of the assault, the complainant had suffered substantial emotional harm, arising mainly, one gathers, from the rupture of family relations after the complainant went to the police (s 21A(2)(g) of the Act).

The Notice of Appeal. 8 The notice of appeal relied upon the following grounds: Ground 1: His Honour failed to give sufficient consideration to the strong subjective features of the appellant. Ground 2: That his Honour failed to properly consider alternatives to full time custody. Ground 3: That his Honour erred in considering some factors and placing too much weight on the Victim Impact Statement dated 6 June 2008. 9 It is convenient to begin with Ground 3 and then to consider Grounds 1 and 2. Grounds 1 and 2, in substance, carry the suggestion that his Honour erred, imposing a sentence which was manifestly excessive.

Ground 3: The Victim Impact Statement. 10 No complaint was made concerning the finding that the offence amounted to a breach of trust. Such a breach was asserted by the Crown before the sentencing Judge and acknowledged by counsel for Mr Clarke (T 6: 16.6.08). Counsel for the applicant on this appeal did not suggest otherwise. Mr Clarke was not the complainant's parent. However, the complainant was the sister of his partner, and a guest in his house. A position of trust is not limited to parental or spousal relationships (R v MAK [2005] NSWCCA 369; De Rosa v Western Australia [2006] WASCA 57; (2006) 162 A Crim R 344 at 359). 11 However, error is asserted in respect of the finding that the complainant suffered substantial emotional harm. The Crown tendered a Victim Impact Statement which was admitted without objection. The complainant said this: "Since the incident that happened to me concerning Matthew Clarke, I have been unable to have contact with my 4 nieces one of whom I have never met. I have also been unable to have contact with my sister ... who I was always in close contact with. I have been worried about threats that have been made to me, this has caused much sadness. ... " 12 The statement added that the complainant was worried about seeing Mr Clarke and her sister at her place of work, and had been afraid of Mr Clarke when she gave evidence. She had had counselling. On the basis of this material, his Honour said this: (ROS 4) "... I should say that in her evidence in the trial, the victim gave evidence along these lines and there can be no doubt that there is some significant harm consequent upon the commission of this offence in the way that she describes." 13 In substance, two complaints were made by the applicant concerning that finding. First, there was the question of causation. The emotional harm must be caused by the offence (s 21A(2)(g) of the Act). Here, according to the applicant, it was not the offence, that is, the conduct of Mr Clarke towards the complainant, that had caused her upset, so much as the disruption to the family that had followed her complaint concerning his conduct. That material, according to the applicant, should not have been given weight by the sentencing Judge, even though it was not the subject of objection. Secondly, before his Honour could characterise the harm as "substantial", it had to be significantly more deleterious than that which an ordinary person would have experienced in the circumstances, since some emotional harm can be assumed (R v Youkhana [2004] NSWCCA 412, per Hidden J at [26]). It was submitted that, when the Victim Impact Statement was viewed in the appropriate light, that is, excluding indirect consequences arising from the complaint, the harm to the complainant could not be characterised as substantial emotional harm. 14 Dealing first with the question of causation, the harm to the victim must be limited to those consequences which were intended or reasonably foreseeable (R v Wickham [2004] NSWCCA 193, per Howie J at [25], although see limitation in Siganto v The Queen (1998) 194 CLR 656 at 667, [35].). It was predictable that, where a person such as a father or step father, or a person in the position of Mr Clarke in relation to his partner's sister, indecently assaulted or sexually molested another person, the victim may complain. If there were a complaint, emotional harm and the potential for rupture to family relationships may occur. In my view, the harm occasioned by the offence is not limited to the physical or emotional reaction by the complainant to the assault itself. 15 Moving to the second issue, the characterisation by his Honour of the emotional harm as "substantial", there can be no question that the victim suffered some emotional harm. His Honour, as the trial Judge, had the advantage of seeing the complainant give evidence. He formed a view as to the degree of harm. Whilst he was not obliged, on this material, to find substantial harm, I believe it was open to him to do so. Because, in my view, he was entitled to take into account the disruption to the family for the reasons given, he did not base his view upon irrelevant considerations. No error of the sort identified in House v The King (1936) 55 CLR 499 has been suggested. 16 I would dismiss Ground 3.

Ground 1: Insufficient weight given to the strong subjective case. 17 Mr Clarke did not give evidence on sentence. He was, however, interviewed by the Probation and Parole Service. A report was prepared. That report, together with seven references from various people including his employer, constituted his subjective case as set out in his Honour's remarks. 18 Mr Clarke was, at the time of sentence, a man aged 29 years. Despite the separation of his parents, he had had a normal childhood. He was described as a relatively gifted student, both academically and as a sportsman. However, he left school having obtained the School Certificate and thereafter held a number of unskilled labouring jobs. At the time of sentence, he was employed as a pool cleaner. His employer spoke very highly of him (ROS 6). The Probation and Parole report included these words: (p 1) "Mr Clarke has been with his current partner for approximately 6 years. Together the two are raising four children - the two youngest being his biological children. Mr Clarke's partner has described him as a supportive partner and loving father to all of their children." 19 Mr Clarke had a minor criminal history. He had been convicted of malicious damage as a child and placed on a recognisance. His only other convictions related to driving whilst affected by alcohol, for which he had been fined and disqualified from driving for a period. His Honour made the following finding in the light of this material: (ROS 6) "... I think it can be concluded from what was said in those references, and because of the offender's lack of any significant criminal history, particularly for like offences, that this offence was entirely out of character." 20 However, Mr Clarke continued to deny the offence. The Probation and Parole report included the following comment, which his Honour accepted: (p 2) "Mr Clarke appears to have enjoyed the benefits of a loving and supportive family environment during his formative years and has managed to maintain these positive family ties throughout his adult life. It is also clear that his current relationship continues to provide him with a positive and nurturing family environment. Despite the existence of such pro-social community ties the offender's continual denials of guilt remain problematic for any future intervention and rehabilitation. " (emphasis added) 21 His Honour plainly took these matters into account. He said this: (ROS 8) " ... Having given the matter careful consideration, and giving due allowance to the strong subjective factors, I am of the view that the appropriate sentence is one comprising a non parole period of twelve months with a full term of two years." 22 Counsel for the applicant complained that his Honour failed to give the applicant's strong subjective case sufficient weight. However, as the Crown said in its written submissions, these were matters for his Honour to evaluate. His Honour was obliged to form a judgment. The submission that evidence was not given "sufficient weight" inevitably encounters the difficulties described by Latham CJ in Lovell v Lovell (1950) 81 CLR 513 (recently reaffirmed in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 330). Latham CJ in Lovell said this: (at 519) "... The references in the various authorities on this matter to a failure to give sufficient weight to relevant considerations should not be understood in such a sense as to entitle an appellate tribunal to deal with an appeal from an order made in the exercise of a discretion in the same way as in the case of an appeal from any other order. If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v Wakefield [1891] AC 173 at 179) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court." (emphasis added) 23 Here, plainly his Honour's evaluation of the evidence could not be characterised as amounting to a failure to exercise his discretion. 24 I believe there is no substance in Ground 1.

Ground 2: Failure to consider non custodial alternatives. 25 The applicant pointed to the obligation under s 5(1) of the Act to consider alternatives to imprisonment. That obligation, as Howie J pointed out in R v Zamagias [2002] NSWCCA 17 at [25], was the preliminary question which the Court must address. It was a question, according to the applicant, which acutely arose in the context of this case by reason of the nature of the offence, the strong subjective case, and the statistics in relation to this offence maintained by the Judicial Commission. According to those statistics, 56 percent of offenders charged under s 61M(1) of the Crimes Act went to gaol. A high proportion of the remainder had their sentences suspended. The applicant drew attention to the words of the Court in Regina v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, where the following was said: "[116] The nature of the offences included in the Table is such that only rarely will sentences involving an alternative to full time custody be appropriate. However, there is nothing in the Act, to indicate any intention to confine the available sentence, for a Table offence, to one of full time custody, provided that a non-custodial sentence would be a proper sentence upon the particular facts of the case. In fact, subject to appropriate reasons being given s 54C(1) of the Act expressly contemplates that alternatives to full time custody will continue to be available." 26 It was submitted by the applicant that his Honour had denied the possibility of any alternative other than a full time custodial sentence in his concluding remarks when he said this: (ROS 8) " ... It seems to me in the light of the standard non parole period that the only possible sentence in relation to this matter is one involving a period of full time custody." 27 Here, his Honour certainly considered alternatives to a full time custodial sentence. They were canvassed in submissions by counsel on the day Mr Clarke was sentenced. Counsel then appearing for Mr Clarke urged his Honour, if he believed a custodial sentence appropriate, to suspend that sentence. Mr Clarke, by reason of his crime, was ineligible for periodic detention (s 65B of the Crimes (Sentencing Procedure) Act 1999) and had been assessed as unsuitable for community service in the Probation and Parole report. These matters were referred to by his Honour in the course of his remarks (ROS 5). 28 So it is clear, I believe, from his remarks as a whole, that his Honour, in the passage set out above, was simply saying that in the circumstances he had identified, a full time custodial sentence was appropriate. The offence was serious, although below the mid range (ROS 4). The touching had been transitory and the offender had retreated. Nonetheless, the standard non parole period remained an important guidepost as to the sentence which should be imposed (ROS 8). That guidepost, in that context, suggested a custodial sentence. 29 In my view, there was no error. The sentence was within the available range. I would also dismiss Ground 2.

Order. 30 The order I propose therefore is that leave to appeal be granted, but the appeal dismissed. **********

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