[2016] NSWCCA 255
Maglis v The Queen [2010] NSWCCA 247
Maglovski v R [2014] NSWCCA 238
McKittrick v R [2014] NSWCCA 128
Source
Original judgment source is linked above.
Catchwords
[2014] HCA 37
Lehn v R (2016) 93 NSWLR 205[2016] NSWCCA 255
Maglis v The Queen [2010] NSWCCA 247
Maglovski v R [2014] NSWCCA 238
McKittrick v R [2014] NSWCCA 128
Judgment (8 paragraphs)
[1]
The applicant's subjective circumstances
The applicant did not give evidence at the sentence hearing. He relied upon a report of Dr Christopher Bench, Forensic Psychiatrist dated 5 July 2022, certificates regarding completion of courses in custody, a reference from the prison chaplain and an (undated) letter to the court.
The applicant was born in 1962 and was 60 years of age at the time of sentence. He reported to Dr Bench that he experienced a dysfunctional and disruptive upbringing. His parents and brother were verbally and physically abusive towards him and towards each other. He began experimenting with and then abusing alcohol from the age of 14 and has used cannabis and amphetamines throughout his life.
The applicant left school after Year 10 and obtained qualifications as a fitter and turner. He was gainfully employed for the majority of his adult life.
The applicant reported to Dr Bench that he was hospitalised on one occasion after experiencing hallucinations and thoughts of self-harm which was subsequently diagnosed as an acute stress reaction. The applicant appears to have suffered depression in more recent times.
The applicant informed Dr Bench that he developed an interest in pornography, specifically child pornography, about three or four years earlier and claimed that since being incarcerated he was no longer interested in child pornography.
Dr Bench was of the opinion the applicant met the diagnostic criteria for alcohol use disorder, cannabis use disorder and stimulant use disorder, each in enforced remission; post-traumatic stress disorder following a workplace bullying incident in partial remission; major depressive disorder mostly related to the circumstances of his incarceration; and paedophilic disorder.
The applicant told Dr Bench he felt "disgusted" and "ashamed" and appeared tearful and distressed when discussing the offences. That said, he described to Dr Bench the offending against Child 1 in the following terms:
I would ask, 'What's in it for me?' and she would suggest what she would do and I would go along with it. I gave her everything she wanted. I remember sitting there and placing her hand in my lap. She was around eight years old. […] I gave her a set of chores to do. The chores she didn't want to do we would negotiate a few favours. The fellatio, I thought she was enjoying it, so I kept on doing it for her. I didn't know she wasn't enjoying it.
In his letter of apology, the applicant said that he was "solely responsible" for the offending and that his "close bond" with the three victims "has been devastated by [his] inappropriate behaviour". He apologised to the victims and acknowledged he had failed to consider the impact of his offending.
The applicant reported to Dr Bench that he had been subjected to a number of assaults while in custody. He also contracted COVID-19 that resulted in him being placed in isolation for 22 days without a change of clothing during which time his belongings were stolen.
The applicant has participated in courses including the Positive Lifestyles Program whilst in custody.
[2]
The sentence proceedings
Written submissions on sentence on behalf of the applicant nominated four matters as justifying a finding of special circumstances, namely:
1. Dr Bench's opinion regarding the applicant's mental health diagnoses and in particular the paedophilic disorder;
2. The sentence being the applicant's first sentence of imprisonment;
3. The applicant's relatively insignificant criminal history;
4. Hardship of custody for child sex offenders with specific reference to the applicant's reported experience on remand in the Special Management Area Placement described to Dr Bench.
No submissions were made regarding special circumstances in the Crown's written submissions on sentence.
During the sentence hearing, counsel for the applicant repeated her submission that the sentencing judge would find special circumstances.
The following exchange then took place between the sentencing judge and the Crown (at POS [16]):
CROWN: Just in relation to special circumstances. I'm sorry -
HIS HONOUR: Not at all, Mr Crown. I was just thinking - I do propose to proceed by way of the aggregate sentencing provisions. I think with a sentence in the nature of which I'll have to set the period of time on parole would be of a nature that would give time for rehabilitation and treatment in the community. Was that the point you were going to consider?
CROWN: I was going to say the statutory ratio, if your Honour doesn't vary that, then it's the Crown's submission, that that would be sufficient to meet the offender's obvious needs to continue something that he'll obviously be starting when he is in custody. His dealing with his mental health and readjusting to life on the outside when he does get out, that's something that can be adequately catered for in a sentence, an aggregate sentence - where your Honour doesn't find special circumstances.
HIS HONOUR: Yes, I will have to look at that. I was - did you wish to address that, Ms Reed?
REED: I can't take it any higher, your Honour, than what I've said. It's my submission that special circumstances are warranted. I can't take it any higher than that.
HIS HONOUR: I follow, thank you. Anything arise, Mr Crown?
CROWN: No, nothing arising. Thank you.
[3]
The sentencing remarks
The sentencing judge delivered his sentencing remarks two days after the sentence hearing.
No challenge is made by the applicant to any of the findings the sentencing judge made regarding the objective seriousness of the offences or the applicant's subjective circumstances.
Given the limited scope of the single ground of appeal, it is unnecessary to make detailed reference to all of the sentencing judge's remarks beyond making the following observations.
In relation to the applicant's prospects of rehabilitation, the sentencing judge noted that the applicant had done what he could on remand including engaging in courses. However, his Honour found the applicant's prospects of rehabilitation and risk of reoffending to be contingent upon his willingness to acknowledge and specifically address his paedophilic disorder. Ultimately his Honour assessed the applicant "as someone who does have prospects of rehabilitation but they must remain guarded at this early stage" (at ROS [29]).
His Honour referred to Dr Bench's opinions regarding the applicant's mental health diagnoses and that ongoing treatment including the use of anti-libidinal medication would reduce the risk of reoffending.
His Honour took into account the fact the applicant had a minor criminal history which his Honour found did not disentitle the applicant to leniency.
On balance the sentencing judge accepted that the applicant had demonstrated that he was remorseful.
His Honour addressed the purposes of sentencing noting the importance of general deterrence, denouncement, punishment, specific deterrence (to the extent it was relevant), recognition of the harm caused by the applicant's offending (as reflected in the Victim Impact Statements) and the need to promote his rehabilitation. In relation to the latter, his Honour observed that he must "take into account the small steps taken so far" and the need for the applicant "to rehabilitate himself and the need that he will have for structured counselling and medical and psychological treatment to do so" (at ROS [30]).
His Honour was satisfied that only a sentence of imprisonment was appropriate and having expressed an intention to impose an aggregate sentence, stated the indicative sentences for each offence and indicative non-parole periods for the two offences attracting a standard non-parole period as indicated in the table above.
His Honour then turned his mind to a consideration of the total sentence. Recognising that the offences involved three identified victims, his Honour referred to the need to make a downward adjustment to achieve "appropriate relativity" between the totality of the criminality and the total sentence to be imposed (at ROS [32]).
His Honour then said at [33] of the ROS:
In doing this, and in calculating the sentence that is appropriate, I have taken into account whether I might find special circumstances as urged on [DB's] behalf to alter the ratio between the non-parole period and the head sentence or the total sentence. Given the period of time that the normal ratio would afford to [DB] to continue his rehabilitation in the community after being eligible to be released, I make only the very slightest of adjustments in that regard.
His Honour then imposed the aggregate sentence stated in paragraph [30] of this judgment. The ratio the non-parole period of 14 years and 6 months has to the aggregate term of imprisonment of 19 years is 76.3%. Regrettably, this fact was not drawn to his Honour's attention despite his Honour asking whether his mathematics were correct in terms of his calculations.
The ground of appeal is predicated upon this Court accepting that the sentencing judge found special circumstances.
The applicant submits the sentencing judge found special circumstances because submissions (both written and oral) were made seeking such a finding and because when the sentencing judge expressed his intention to make "only the very slightest of adjustments", he was dealing with the very issue of special circumstances.
The applicant further observes that it was never urged by the Crown (nor implied by the sentencing judge) that there would be an upward adjustment of the statutory ratio. While there is no requirement to state reasons if the statutory ratio is increased, the Court of Criminal Appeal said in Maglovski v R [2014] NSWCCA 238 that a judge would be expected to give reasons if increasing the statutory ratio. The applicant therefore submits that the sentencing judge can only have intended that the adjustment to which he referred would be a downward adjustment (consistent with a finding of special circumstances).
The Crown submits that the sentencing judge did not make a finding of special circumstances. He made no express statement in that regard nor articulated reasons for such a finding. Furthermore, the sentencing judge noted the sufficiency of the time the "normal ratio" (at ROS [33]) would afford the applicant to continue his rehabilitation in the community after being eligible for release, which, it is contended, is inconsistent with a finding of special circumstances.
[4]
Consideration
I am satisfied the sentencing judge made a finding of special circumstances. Although his Honour turned his mind to the adequacy of the period provided by the statutory ratio (or to use his Honour's expression "the normal ratio") to address the applicant's rehabilitation, his Honour ultimately formed the view that a very slight adjustment to the statutory ratio was appropriate. In circumstances where the Crown had never sought an upward increase to the statutory ratio, the adjustment ("very slight") to which his Honour referred was a downward adjustment.
The sentence imposed did not give effect to the finding of special circumstances. His Honour did not adjust by reducing the length of the non-parole period from the statutory ratio but increased the ratio resulting in a non-parole period that constituted 76.3% of the head sentence. I am satisfied this result was not intended but was the result of inadvertence in calculation.
I am satisfied error has been established and would uphold the appeal.
The sentencing judge did not specify what he meant by "the very slightest of adjustments" and the parties agree that the error is not of the kind that can be corrected by a simple mathematical adjustment. Accordingly, this Court must set aside the sentence imposed and exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
[5]
Resentencing
No further evidence has been tendered on the appeal in the event the Court proceeded to resentence the applicant.
I agree with the factual findings made by the sentencing judge including those as to the objective seriousness of the offences. The offences involved the exploitation of his biological daughter and the two daughters of a family friend left at the applicant's home for care and supervision warrant condign punishment.
In the light of Dr Bench's evidence, it is necessary to consider whether or not the applicant's moral culpability is reduced. The applicant has been diagnosed with a paedophilic disorder. This condition explains the offending but does not significantly reduce the applicant's moral culpability. The applicant knew what he was doing was wrong and took no steps to address or cease his offending. The applicant warned Child 1 against disclosure to her mother and attempted to normalise his conduct. Child 2 and Child 3 were very young and suffered behavioural issues. Little was needed to discourage complaint by either of them. Furthermore, the evidence does not reveal any link between the applicant's depression and the offending. There is very little in the applicant's subjective circumstances that reduces his moral culpability or reduces the need for significant weight to be afforded to general deterrence.
The applicant pleaded guilty to each offence at an early opportunity entitling him to a 25% discount. His guilty pleas provide some evidence of contrition.
On balance I am satisfied the applicant had demonstrated genuine remorse and that he is developing insight. Whilst some concerns arise as a result of things he told Dr Bench, for example that he did not know that Child 1 was not enjoying what he was doing, I am satisfied his limited insight at that time was a feature of his paedophilic disorder, and with offence-specific treatment and further reflection on the content of the Victim Impact Statements his insight will continue to develop.
I consider the applicant's prospects of rehabilitation to be reasonable. While paedophilia is a life-long affliction, the applicant states a current preparedness to take anti-libidinal medication when ultimately released from custody and it is hoped his attitude in that regard will continue.
I am not of the view there are special circumstances. All of the matters relied upon by the applicant as amounting to special circumstances have been taken into account in the assessment of the appropriate aggregate head sentence. While such circumstances can also bear upon the appropriate length of the non-parole period, the statutory ratio will be more than adequate to supervise the applicant and to assist with his rehabilitation and reintegration into the community. Ultimately, the non-parole period imposed upon the applicant must reflect the minimum period of imprisonment the applicant must spend in full-time custody having regard to the purposes of sentencing, the objective seriousness of his offending and all of the applicant's subjective circumstances.
In resentencing the applicant, notwithstanding the positive aspects of his subjective circumstances, the Court must have regard to the purposes of sentencing. Here, general deterrence is a very important sentencing consideration as is the need to denounce the applicant's conduct and recognise the harm his offending has caused.
Taking all of those matters into account in the instinctive synthesis reasoning process, I have come to the conclusion that no lesser sentence than the aggregate head sentence imposed by the sentencing judge is warranted in law. However, I am not of the view the non-parole component of the sentence imposed is warranted in law. There is no basis for the imposition of a non-parole period that exceeds the statutory ratio nor do I consider a non-parole period of 14 years and 6 months to be the minimum sentence the applicant should serve in custody before being eligible for release to parole.
Accordingly, I would grant leave to appeal and resentence the applicant but only in so far as reducing the non-parole period to the statutory ratio. To achieve that outcome, the non-parole period will be reduced from 14 years and 6 months to 14 years and 3 months. The head sentence and indicative sentences set out in the table above will remain the same.
[6]
Consequential orders
In the event this Court was to allow the appeal and resentence the applicant, as I would do, the parties agree that further orders are appropriate pursuant to s 59 of the CSPA. It relevantly provides that:
59 Court may vary commencement of sentence on quashing or varying other sentence
(1) A court that quashes or varies a sentence of imprisonment imposed on a person (on appeal or otherwise) may vary the date of commencement of any other sentence that has been imposed on that person by that or any other court.
This issue arises because the applicant was sentenced for unrelated matters (2021/00228705) by Walmsley SC ADCJ at Newcastle District Court on 16 June 2023 to an aggregate fixed term of imprisonment of 20 months commencing 30 July 2034 and expiring 29 March 2036 for offences committed earlier in time. This sentence was made 14 months concurrent on the sentence the subject of the present appeal.
Neither party challenges any aspect of the sentence imposed by Walmsley SC ADCJ. However, as a result of the orders I propose should be made in the present appeal, the commencement date of the sentence imposed by Walmsley SC ADCJ requires variation to preserve the 14-month period of concurrency so ordered. I am satisfied it is appropriate to exercise the discretion pursuant to s 59 of the CSPA to make that variation.
[7]
Orders
Accordingly, I propose the following orders:
1. Leave to appeal is granted.
2. The appeal against sentence is allowed.
3. The sentence imposed by Judge McGrath SC is quashed and in lieu thereof the applicant is sentenced to an aggregate sentence of imprisonment for 19 years commencing on 31 March 2021 and expiring on 30 March 2040 with a non-parole period of 14 years and 3 months expiring on 30 June 2035.
4. Pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I vary the commencement date of the applicant's aggregate fixed term of imprisonment of 20 months imposed by Walmsley SC ADCJ (2021/00228705) to 30 April 2034. The effect of that variation will be that the sentence will expire on 29 December 2035 (and not 29 March 2036).
[8]
Amendments
23 February 2024 - Grammar amendments at para [7], [13], [15].
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Decision last updated: 23 February 2024
I agree with Huggett J that there was an error in the sentencing process in relation to the question of special circumstances and in the proportion between the head sentence and the non-parole period.
I agree with Huggett J that, while the sentencing Judge did not make a clear statement that he found special circumstances and the basis upon which the finding was made, his Honour's observation that "I make only the very slightest of adjustments in that regard" can only, in context, have referred to a slight adjustment downwards, so that it was the intended that the non-parole period would be slightly less than 75% of the 19 years aggregate sentence.
Had the sentencing Judge intended to increase the ratio above 75%, as he did, it would be expected (as Huggett J has written by reference to Maglovski v R [2014] NSWCCA 238) that his Honour would have said so and explained his reasons: see also, for example, McKittrick v R [2014] NSWCCA 128; (2014) 243 A Crim R 155 at [37].
In further support of the conclusion that his Honour was satisfied there were special circumstances is the fact that the indicative sentence for Sequence 25/H730 was 3 years with a non-parole period of 2 years. That is, the indicative non-parole period was around 66% of the indicative sentence.
Re-sentencing or correcting the error?
I have borrowed the sub-heading above from the judgment of Beech-Jones CJ at CL (as his Honour then was) in Christian v R [2021] NSWCCA 300 ("Christian") because it identifies a somewhat thorny issue that arises in this appeal.
Before the decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 ("Kentwell"), this was a case where the Court in re-sentencing would likely have attempted to give effect to the sentencing Judge's intention, that is, to make a "very slight" adjustment to the non-parole period: see, for example, R v Sharrock [1999] NSWCCA 289 at [14], R v Bolamatu [2002] NSWCCA 454 at [28]-[29], Maglis v The Queen [2010] NSWCCA 247 at [25]-[26] and CM v R [2013] NSWCCA 341 at [39]-[42].
However, Kentwell determined that an intermediate court of appeal which finds legal error in a sentence must re-exercise the sentencing discretion afresh. This requires the appeal judges to put out of their mind the sentence imposed at first instance: see, for example, Turnbull v R [2019] NSWCCA 97 at [42]-[46] (Simpson AJA). There has been criticism of a respondent to a sentence appeal making a simple assertion that "no lesser sentence is warranted in law" because such a contention is "apt to mislead": Davis v R [2015] NSWCCA 90 at [84]. On the other hand, the Chief Judge at Common Law said recently that "it is obviously artificial to expect this Court to have no regard to the sentence imposed in the Court below": Tenenboim v R [2024] NSWCCA 1 at [41]: see also the helpful interpretive observations of N Adams J at [66].
There remain cases where the established or conceded error is either purely arithmetical or is "entirely discrete" from the discretionary aspects of sentencing and the Court can appropriately re-sentence without undertaking the entire sentencing exercise again: see, for example, Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 and Sausa v R [2023] NSWCCA 95 ("Sausa").
The issue was discussed by a five-judge bench in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 ("Lehn") and considered again in Christian.
Lehn was concerned with the failure of a sentencing judge to provide the appropriate sentencing discount for a guilty plea. However, the judgments canvassed cases, such as the present, where a judge finds special circumstances but fails to give effect to their finding by adjusting the non-parole period. Bathurst CJ at [85]-[87] rejected the approach taken in O'Connell v R [2016] NSWCCA 43 in which the Court held (at [29]) that "[t]he only question for this Court was the propriety of the proportion of the sentence constituted by the non-parole period" and that it was not necessary to exercise the sentencing discretion afresh. Beazley P (as her Excellency then was) and Schmidt J agreed with the Chief Justice. In relation to what was described as "the Kentwell issue", RA Hulme J said:
"124 I reiterate what I said in Martin v R (at [96]) about the High Court in Kentwell v The Queen not expressly dealing with error in sentencing that only affects a discrete component and where there is no conceivable impact upon the overall sentence. I gave examples, such as an error in the commencement date of the sentence; the proportion of the sentence represented by the non-parole period; or the extent of the discount for a plea of guilty or assistance to authorities. The present case is of the latter type but it does not fall within the type of case I was speaking about in Martin v R because, as I have indicated above, it is complicated by virtue of the fact that the primary judge was required to impose sentences for multiple offences and that brought into play other aspects of the sentencing discretion. I gave other examples in Martin v R (at [98]): an error in failing to take into account a period of pre-sentence custody by backdating the sentence; or post-dating a sentence to an extent that was beyond the statutory power to do so.
125 Having said all of this, I have come to the conclusion that the applicant's submissions as to the application of Kentwell v The Queen should be accepted. I maintain misgivings as to whether what was said by the plurality was contemplated and intended to apply to each and every error that may occur in the sentencing process (aside from a 'legal error' that is clearly inconsequential such as the example given at [42]), no matter how minor and confined to an easily identifiable component of the sentence they may be. But on their face, the words used in [42] of the judgment are not in any sense vague or ambiguous. It is the role of this Court to faithfully apply them and not to qualify or quarantine their application; that is a matter for the High Court itself if a litigant seeks to persuade it to do so: Ravenor Overseas Inc v Readhead (1998) 72 ALJR 671; [1998] HCA 17 at [3]."
In Christian, the issue arose in precisely the context that it does in the present case. Beech-Jones CJ at CL identified the issue and discussed the authorities at [29]-[35] before concluding:
"36 In this case I do not accept that the error of the sentencing judge in failing to give effect to the finding of special circumstances is an error that does not require a 'full Kentwell resentencing'. Although his Honour provided detailed reasons for the finding of special circumstances, his Honour did not specify the non-parole period that followed from that finding and hence it is not known what was the adjustment to the ratio between the additional term and the non-parole period. The fixing of a non-parole period is an essential component of the overall sentence. In this case if his Honour intended to fix a non-parole period of 4 years 5 months being just under 55% of the total sentence then that is a very different outcome to a non-parole period that was 5 years and 8 months being just under 70% of the total sentence. In these circumstances if the Court was to only determine the non-parole period, then the resulting sentence would not be the 'corrected' sentence that his Honour intended to impose but some amalgam of a sentencing exercise undertaken by two Courts at two different levels in the judicial hierarchy.
37 In reaching this conclusion I have not overlooked that, in this case, the applicant was content to have this Court only adjust the non-parole period and, in that sense, it could be said that he had confined the scope of his appeal. In Lehn (at [81]), Bathurst CJ noted the concession by counsel for the applicant in Carrol v R [2015] NSWCCA 219 that it was only necessary to address concurrence and accumulation. However, in this case the Crown did not accept that the Court could so confine itself. In any event, for the reasons just noted, the failure to properly determine the non-parole period affects the whole sentencing exercise and this Court cannot avoid applying s 6(3) of the Criminal Appeal Act even if the parties agree it could."
RA Hulme J agreed but made it plain at [47] that his agreement arose from the fact that the Chief Justice in Lehn "specifically rejected" the alternative approach. The applicant had submitted the Court could "confine itself to adjusting the non-parole period" while the respondent submitted "that a 'full Kentwell resentencing' exercise was required to be undertaken": see Beech-Jones CJ at CL at [29]. RA Hulme J lamented:
"50 Rather than promoting practical and economical appellate rectification of a conceded error, the approach of the [respondent] only serves to entrench complexity which, in a case such as this, has no tangible benefit."
Dhanji J (at [51]) was "inclined to the view that … the appeal could have been limited to a consideration of the non-parole period had both parties agreed to this approach" (my emphasis) but preferred not to express a concluded view on the issue.
Sausa was another case where the sole ground of appeal asserted that the sentencing Judge found special circumstances but failed to adjust the non-parole period in accordance with their intention. N Adams J (with whom Wilson and Cavanagh JJ agreed) explained the position taken by the parties and her conclusion as to the appropriate way in which to dispose of the appeal:
"31 Counsel for the applicant submitted that it would be open to the court on resentencing the applicant to maintain the aggregate head sentence and vary the non-parole period to reflect the intention of the sentencing judge. The Crown accepted that this was an appropriate way to dispose of the appeal.
32 Usually, if error is established in the sentencing process the court is required to resentence the applicant afresh: Kentwell. Despite this, there will be some appeals in which the nature of the error is such that a variation can be made to the sentence to correct the arithmetical error below.
33 In Lehn the court sat a five judge bench to consider the scope of Kentwell and, in particular, what sort of discrete errors do not require the court to re-sentence afresh. The court observed that when re-sentencing an applicant where the error is in respect of 'a discrete part of the process,' it is still necessary for this court to form its own view of the appropriate sentence. As Bathurst CJ, with whom Beazley P and Schmidt J agreed, stated at [68]:
'… It seems to me that if there is an error which affects the exercise of the sentencing discretion, the section requires the court to form its own view of the appropriate sentence…'
34 Despite this, it was noted by the court in Lehn that there may be occasions when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. An example provided by Bathurst CJ at [72] was when an arithmetical error has occurred, the extent of which can be properly determined.
35 I am satisfied that the error established in this matter is an arithmetical one the extent of which can be properly determined such that it is not necessary for this court to exercise the sentencing discretion afresh."
There is some tension in these authorities, but the approach taken by N Adams J in Sausa accords with the observations of both RA Hulme and Dhanji JJ in Christian. However, that approach will only be available where the parties agree to that course. Where there is controversy as to the appropriate course, the prevailing view remains that stated by the Chief Justice in Lehn. In the present case, neither party suggested the Court would simply make an adjustment to the non-parole period in the event that it upheld the single ground of appeal. On the contrary, both parties submitted it "would be necessary to exercise the sentencing discretion afresh": applicant's written submissions at [31]; respondent's written submissions at [38].
For those somewhat overwrought reasons, I agree with Huggett J (at [87]) that it is necessary to exercise the sentencing discretion afresh.