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[2017] ACTCA 37
Court of Appeal (ACT)
2017-08-01
Murrell CJ, Mossop and Wigney JJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: CX v The Queen
Citation: [2017] ACTCA 37
Hearing Date: 1 August 2017
Decision Date: 1 August 2017
Before: Murrell CJ, Mossop and Wigney JJ
Decision: Appeal dismissed.
Catchwords: APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal against sentence – sexual offences – historical offences – sexual intercourse with young person – acts of indecency with young person – whether primary judge required to take into account the remissions available to prisoners at the time that the offences occurred – offender’s life expectancy as a mitigating factor under sentence – offender’s ill-health as a mitigating factor under sentence
Legislation Cited: Crimes (Sentencing) Act 2005 (ACT) ss 33(1)(m), 35 Crimes Act 1900 (ACT) ss 76, 92E(1), 92K(1), 92K(2)
Cases Cited: AJB v The Queen [2007] NSWCCA 51; 169 A Crim R 32 Dalton v The Queen [2015] ACTCA 48 GS v The Queen [2016] NSWCCA 266 Hall v The Queen; Barker v The Queen [2017] ACTCA 16 Holyoak v The Queen (1995) 82 A Crim R 502 JT v R [2012] NSWCCA 133 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 MPB v The Queen [2013] NSWCCA 213; 234 A Crim R 576 O’Brien v The Queen [2015] ACTCA 47 R v Smith (1987) 44 SASR 587 R v Walsh [2009] NSWSC 764 ZA v The Queen [2017] NSWCCA 132
Parties: CX (Appellant) Crown (Respondent)
Representation: Counsel Mr J Sabharwal (Appellant) Mr J White SC (Respondent)
Solicitors Sharman Robertson Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 48 of 2016
Decision under appeal: Court/Tribunal: ACTSC Before: Elkaim J Date of Decision: 8 November 2016 Case Title: R v CX (No 2) Citation: [2016] ACTSC 325
THE COURT:
The appeal
The appellant was charged with 16 child sex offences committed between 1973 and 1993. The victims were the appellant’s daughters, SP and DN, and two sisters who received childcare in the appellant’s home, ST and LT. Most offences were committed at the appellant’s home when his wife was absent.
The appellant pleaded guilty to Counts 1 to 3 on 29 August 2016, the first day of the trial.
On 9 September 2016, a jury found him guilty of nine further offences.
On 18 October 2016, bail was revoked.
On 8 November 2016, Elkaim J (the primary judge) imposed a total sentence of 10 years’ imprisonment from 18 October 2016 to 17 October 2026 and fixed a nonparole period of five years’ imprisonment.
The appellant appealed against the sentences on the grounds that:
(a) The sentences for Counts 1, 2, 7, 11 and 12 were manifestly excessive (Ground 1).
(b) The primary judge failed to take into account the remissions available to prisoners at the time that the offences occurred (Ground 2).
(c) The primary judge sentenced on the basis that the appellant’s life expectancy was six to seven years, but during the proceedings his Honour had accepted that the relevant period was 4.19 years (Ground 3).
However, at the hearing, the appellant pressed only a slightly amended Ground 3, arguing that he should have received a shorter nonparole period because of his reduced life expectancy.
As to Ground 1, counsel for the appellant stated that the appellant would take no issue with the length of individual sentences because the total sentence of 10 years’ imprisonment was unobjectionable.
The appellant abandoned Ground 2. The individual offences and sentences
Incident 1 - SP
Count 1: 1.1.73 – 31.12.73 indecent assault on SP, a person under 16 years.
When SP was six or seven years old, she was asleep on her bed when the appellant touched her abdomen, then placed his hand inside her underpants and touched the outside of her genital area.
The appellant was sentenced to two years’ imprisonment from 18.10.16 to 17.10.18.
Count 1 was an offence against s 76 of the Crimes Act 1900 (ACT) (Crimes Act), which carried a maximum penalty five years’ imprisonment.
Count 2 1.1.73 – 31.12.73 indecent assault on SP, a person under 16 years.
The appellant carried SP to his bedroom, removed her underpants, touched her genital area and placed her hand on his erect penis.
The appellant was sentenced to two years’ imprisonment from 18.9.17 to 17.9.19 (s 76, maximum penalty five years’ imprisonment).
Count 3 1.1.73 – 31.12.73 indecent assault on SP, a person under 16 years.
The appellant placed Vaseline on his fingers, digitally penetrated SP and ejaculated onto her abdomen.
The appellant was sentenced to two years’ imprisonment from 18.10.18 to 17.10.20 (s 76, maximum penalty five years’ imprisonment).
The total sentence imposed for Incident 1 was four years’ imprisonment.
Incident 2 - SP
Count 4 2.8.81 – 1.8.82 indecent assault on SP, a person under 16 years.
When SP was about 15 years old, the appellant touched her breasts, put his hand between her legs and made indecent suggestions to her.
The appellant was sentenced to one year’s imprisonment from 18.10.16 to 17.10.17 (s 76, maximum penalty five years’ imprisonment).
The sentence imposed for Incident 2 was wholly concurrent with the sentences imposed for Incident 1.
Incident 3 - DN
Count 6 1.1.84 – 27.11.85 indecent assault on DN, a person under 16 years
When DN was 9 to 11 years old, the appellant called her to his bed, put his hand inside her underpants, touched her genital area and put one or more fingers into her vagina.
The appellant was sentenced to two years’ imprisonment from 18.10.16 – 17.10.17 (s 76, maximum penalty five years’ imprisonment). The sentence imposed for Incident 3 was wholly concurrent with the sentences imposed for Incident 1.
Incident 4 - LT
Count 7 1.1.87 – 31.12.93 sexual intercourse with LT, a person under 10 years
When LT was about five years old, she was sitting on the appellant’s lap when he removed her underpants and kissed her genital area.
The appellant was sentenced to six years’ imprisonment from 18.2.18 to 17.2.24
Count 7 was an offence against s 92E(1) of the Crimes Act and carried a maximum penalty 17 years’ imprisonment.
Count 9 1.1.87 – 31.12.93 act of indecency on LT, a person under 10 years
The appellant placed a finger near LT’s vagina.
The appellant was sentenced to two years’ imprisonment from 18.10.16 to 17.10.18.
Count 9 was an offence against s 92K(1) of the Crimes Act and carried a maximum penalty 12 years’ imprisonment.
The sentences for Incident 4 added three years and four months’ imprisonment to the sentences for Incident 1 (and concurrent sentences for Incidents 2 and 3).
Incident 5 - LT
Count 10 1.1.87 – 31.12.93 act of indecency on LT, a person under 10 years.
When LT was under six years old, the appellant placed her on a mattress. She was not wearing underwear. The appellant was then interrupted by another person and pulled a curtain across to hide LT.
The appellant was sentenced to one year’s imprisonment from 18.10.16 to 17.10.17 (s 92K(1), maximum penalty 12 years’ imprisonment).
The sentence was entirely concurrent with other sentences.
Incident 6 - LT
Count 11 1.1.87 – 31.12.93 act of indecency on LT, a person under 10 years
When LT was under six years old and was in the appellant’s bedroom, he directed her to kiss his penis and she did so. The appellant’s wife entered and then left abruptly, followed by LT.
The appellant was sentenced to six years’ imprisonment from 18.8.19 – 17.8.25 (s 92K(1), maximum penalty 12 years’ imprisonment).
The sentence was half the maximum penalty but was accumulated so as to add only 18 months’ imprisonment to the sentence imposed for Incident 4, which also involved LT.
Incident 7 - LT
Count 12 1.1.91 – 31.12.93 act of indecency on LT, a person under 10 years When LT was about five or six years old, the appellant removed her underpants and exposed his penis. He directed her to kiss it, and she did so.
The appellant was sentenced to 6 years’ imprisonment from 18.10.20 to 17.10.26 (s 92K(1), maximum penalty 12 years’ imprisonment).
The sentence was half the maximum penalty but was accumulated so as to add only 14 months’ imprisonment to the sentence imposed for Incident 6, which also involved LT.
Incident 8 - LT
Count 15 1.1.98 – 31.12.99 act of indecency on LT, a person under 16 years
When LT was about 12 years old, the appellant took her into her bedroom at her new home and attempted to touch and kiss her.
The appellant was sentenced to six months’ imprisonment from 18.10.16 to 17.4.17.
Count 15 was an offence against s 92K(2) of the Crimes Act 1900 (ACT) and carried a maximum penalty 10 years’ imprisonment.
The sentence was entirely concurrent with the sentences imposed for other incidents.
Incident 9 - ST
Count 16 1.1.91 – 31.12.93 act of indecency in the presence of ST, a person under 16 years
When the ST was 10 or 11 years old, in the appellant’s backyard he spoke to her indecently about penile/vaginal intercourse.
The appellant was sentenced to one month’s imprisonment from 18.10.16 to 17.11.16 (s 92K(2), maximum penalty 10 years’ imprisonment).
The sentence was entirely concurrent with sentences imposed for other incidents.
Objective seriousness of the offences
The primary judge observed that the offences that the appellant committed against his own children involved an abandonment of responsibility and a cowardly breach of trust and were committed within a family environment, which children “were entitled to expect was safe and free from sexual abuse.” The victims were defenceless. Over many years the victims had been conflicted, believing that they should not shatter family cohesion but knowing that they had been indecently assaulted and were in danger of further assault.
His Honour observed that the offences against LT also involved a breach of trust because LT was in the care of the appellant and his wife. His Honour said that the offences committed against her when she was a very young child could “hardly be more serious.”
In assessing the objective seriousness of the offences, the primary judge observed that the conduct was deliberate, was committed against young and vulnerable victims and that some of the conduct was particularly depraved. His Honour noted the period of time over which the offences had occurred and described them as “part of a course of conduct.” Victim impact
The primary judge said that the victim impact statements of each victim and the husbands of SP and DN provided “an emotional and moving account of the stress, trauma, anguish, guilt and struggle to cope that [the victims] each endured in their separate ways.”
The offender’s subjective circumstances
When sentenced, the appellant was a 75-year-old retiree with no prior criminal record.
The primary judge described him as “an ostensibly religious man” who had been “closely involved in the Catholic faith either in a mainstream manner or with groups such as Hepzibah.”
Except in relation to the three offences to which he pleaded guilty, the appellant expressed no acceptance of responsibility or remorse. The primary judge found that the appellant was unlikely to reoffend “if only as a result of his deteriorating health condition.”
A psychologist reported that the appellant displayed symptoms consistent with a major depressive disorder and was consuming an excessive amount of alcohol.
The appellant suffered from a number of physical ailments. He had undergone two hip replacement operations and a total right shoulder replacement. He took a variety of medications. In October 2016, he had experienced angina associated with an arterial blockage. He took medication to reduce the likelihood of a heart attack.
The appellant had early onset dementia, with significant brain atrophy and early memory disturbance. Associate Professor Rosenfeld said that the brain disease and associated cognitive deficits would worsen over the following five to 10 years. He stated:
My expertise does not include a close knowledge of the situation, social and environmental circumstances of prison. However in the case that over time, his cognitive problems worsen, particularly if this worsening is associated with behavioural issues, it is reasonable, in my view, to anticipate that the prison environment will be more challenging for [the appellant] and similarly the challenge faced by prison staff will increase than in the case of an individual not suffering from a similar illness.
Other matters
The primary judge acknowledged that he was required to consider sentencing patterns as they were at the time of the offences. However, his Honour observed that, because of the long period over which the offences were committed, it was almost impossible to discern relevant sentencing trends applicable to the offences.
The primary judge found that there was no utilitarian value to the pleas of guilty to Counts 1 to 3 because they were entered very late, SP was still required to give evidence in the trial (tendency evidence of the incidents the subject of Counts 1 to 3 and evidence about Count 4, which the offender denied) and because the facts of Count 3 were disputed (the offender denied digital penetration). Further, his Honour noted that the pleas had been entered in the face of an overwhelming prosecution case (the offender had made admissions to several people). His Honour said that any discount could “only be minimal.” Ultimately, his Honour gave no discount.
In the appellant’s written submissions, the appellant complained about the primary judge’s failure to allow a discount for the plea of guilty to Count 1 under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), but the argument was not pressed at the hearing. The Court agrees with the primary judge that there was virtually no utilitarian value to the pleas. The other mandatory considerations in s 35 militated against allowing a discount.
Appropriate sentence
The appellant’s submissions about the nonparole period must be considered in the context of the appellant’s concession that the total sentence was within the available range. Indeed, we consider that it was well within the available range.
The appellant was right to abandon the claim that individual sentences were manifestly excessive. A claim of manifest excess or manifest inadequacy calls into question what is a quintessentially discretionary decision, preservation of which is of vital importance to the administration of criminal justice: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]. Whether a sentence is “manifestly excessive” must be considered in the context of the legislated maximum penalty that applies to the “worst possible case” and provides a “yardstick” for assessing the appropriate penalty in a particular case; the objective seriousness of the particular offence and the subjective circumstances of the offender are also critical to deciding whether a sentence lies within the available range: Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [20]–[23]. See also Dalton v The Queen [2015] ACTCA 48 at [18].
Perhaps some of the sentences imposed by the primary judge were somewhat lenient. By comparison, others may seem severe. In particular, the sentences of six years’ imprisonment imposed on Counts 11 and 12 (50 per cent of the legislated maximum penalty) were stern, especially when compared with some of the more lenient sentences. However, that does not mean that they were outside the available sentencing range.
The primary judge was aware that he was required to impose individual sentences and then structure them “to achieve a just totality of all the sentences that need to be imposed.”
Having imposed sentences that were appropriate for the individual offences, the primary judge had to accumulate the sentences to achieve a total sentence that appropriately reflected the total criminality. Questions of concurrency and accumulation are discretionary matters for a sentencing judge and there may be a variety of means to achieve a total sentence that appropriately reflects the totality of the criminal behaviour. As questions of accumulation are intuitive, the level of transparency that can be provided by the sentencing judge is limited: JT v R [2012] NSWCCA 133 at [73]; ZA v The Queen [2017] NSWCCA 132 at [88]; Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [42]. In O’Brien v The Queen [2015] ACTCA 47 at [26], this Court set out the principles in relation to sentencing for multiple offences to achieve an appropriate overall sentence.
In this case, the primary judge made some sentences entirely concurrent and partially accumulated other sentences. The appellant was sentenced for nine incidents that spanned 20 years and involved 12 offences. There were four young victims. The offences involved gross breaches of trust; two of the victims were the offender’s daughters and two were children in his care for other reasons. It is no exaggeration to say that the personal violation suffered by each victim has impacted her life in a dramatic and permanent fashion. As the appellant ultimately conceded, it could not reasonably be argued that the total sentence of 10 years’ imprisonment overstated the total criminality.
Ground 2: Failure to take remissions into account
This ground was not pursued.
We note that in AJB v The Queen [2007] NSWCCA 51; 169 A Crim R 32, the Court held that, when sentencing with regard to past sentencing practices, a sentencing court is not required to reduce a sentence because of an executive practice of allowing remissions at an earlier time. In MPB v The Queen [2013] NSWCCA 213; 234 A Crim R 576, the Court was concerned with offences that had occurred at a time when the fixing of nonparole periods was heavily influenced by the existence of a remission system. The Court affirmed that the remission system was to be disregarded; it was not the role of the Court to make allowances for the impact of executive practices on sentence. At [19], Basten JA observed that the appropriate resolution of difficulties associated with sentencing for a very old offence was to give primary attention to the range of penalties available at the time of the offence and the range of the conduct to which those penalties applied.
Ground 3: Approach to medical problems and life expectancy
The appellant argued that, because the primary judge misunderstood the evidence about life expectancy, he imposed an unreasonably lengthy nonparole period.
We do not think that the primary judge misunderstood the evidence. Nor do we think that his Honour imposed a nonparole period that was unreasonably lengthy. It was for the appellant to demonstrate that the nonparole period was unreasonable or plainly unjust and the appellant fell well short of doing so.
Life expectancy
The Notice of Appeal asserted that the primary judge sentenced on the basis that the appellant’s life expectancy was six to seven years, but that during the proceedings his Honour had accepted that the relevant period was 4.19 years. The appellant’s counsel asserted that the appellant’s life expectancy at the time of sentencing was in fact 4.19 years.
The evidence before the primary judge was that, applying the Furzer Crestani Medium Life Expectancy Tables, Associate Professor Rosenfeld had initially calculated the appellant’s life expectancy as 12.69 years less one third, i.e. 8.38 years. After the appellant’s cardiac event in October 2016, Associate Professor Rosenfeld revised the estimate, calculating that the appellant’s life expectancy was reduced by 50 per cent.
In written submissions filed in the sentencing proceedings and in oral submissions made during those proceedings, the defence submitted that Associate Professor Rosenfeld’s evidence meant that the appellant’s life expectancy was 4.19 years.
The submission made during the sentencing proceedings and on the appeal was wrong. At no stage did the primary judge accept the erroneous submission. Fifty per cent of a life expectancy of 12.69 years is 6.35 years. In the reasons for sentence, the primary judge correctly stated that the appellant’s life expectancy was six to seven years.
Impact of imprisonment
In the written submissions filed on the appeal, the appellant also argued that the nonparole period of five years failed to adequately recognise the hardship that he would suffer in prison because of his medical condition and “extinguishe[d] any hope or expectation” that the appellant would have “some useful period of his lifetime to enjoy.”
An offender’s age and physical and mental condition are relevant to the sentence imposed, including the nonparole period: s 33(1)(m) Sentencing Act. Imprisonment may be a greater burden because of ill health suffered by an older offender. However, a sentence (including the nonparole period) must appropriately reflect a variety of sentencing purposes, including those that relate to the objective culpability of the offender’s conduct: R v Smith (1987) 44 SASR 587; 589–590 per King CJ; Holyoak v The Queen (1995) 82 A Crim R 502, 507–508; R v Walsh [2009] NSWSC 764.
In GS v The Queen [2016] NSWCCA 266, the appellant had been convicted of sexual offences against children aged six and nine years. The Court dismissed his appeal against a total sentence of eight years imprisonment with a five year nonparole period. The appellant had argued that there was a significant likelihood that he would die before the expiration of his nonparole period. Gleeson JA (with whom Fagan and N Adams JJ agreed) said at [94]:
...I am mindful that the need for general deterrence should be viewed in the light of the applicant’s age and ill health and the real risk that he will spend the remainder of his life in custody. However, the applicant’s offending, particularly considering the breach of trust which it involved, is of such a degree of seriousness that, taking into account all the circumstances, I do not regard the 2014 sentences as plainly unreasonable or unjust. And Fagan J observed at [99]–[100]:
... It is a common feature of historical sexual offences committed by older men against very young children that, by the time the victim has reached maturity and is able to summon the courage to make complaint to authorities, the offender will be advanced in years. By the time he is brought to justice he may be quite elderly, or ill-health of later years may have caught up with him. The necessity for the courts to impose penalties which reflect the community’s abhorrence of these crimes and which otherwise fulfil the purposes prescribed in s 3A Crimes (Sentencing Procedure) Act 1999 (NSW) restricts the degree to which sentences can be mitigated on account of the age and/or frailty of the offender. This was considered at length in Holyoak v R (1995) 82 A Crim R 502 at 507 – 508, again in R v DB [2001] NSWCCA 320 at [17], [18] and more recently in Wright v R [2016] NSWCCA 122 at [95] – [97], a case of an elderly historical sex offender who sought to adduce fresh evidence of deterioration in his medical condition following the passing of sentence at first instance.
In this case, the primary judge acknowledged that the appellant’s medical history was a significant factor to be taken into account when sentencing. His Honour accepted that the appellant’s medical conditions and especially dementia would make the prison environment challenging for him, particularly as his brain disease progressed.
His Honour accepted that the appellant’s life expectancy was significantly reduced and that, if the appellant was required to serve more than six years in custody, he could very well die in prison. Even if he was required to serve a shorter period, he may die in custody. His Honour imposed a five year nonparole period “to give effect to [the appellant’s] deteriorating health condition and his reduced life expectancy.” His Honour was aware that, by the time that the appellant was released from custody, “he may well be significantly demented.”
There was no error in the primary judge’s approach to the evidence of life expectancy. When fixing the nonparole period, his Honour took the appellant’s medical condition and life expectancy into account in an appropriate way.
The appeal is dismissed.
I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Mossop and Justice Wigney.
Associate:
Date: 22 August 2017
CX
The Queen [2017] ACTCA 37
(1987) 44 SASR 587