DBW v REGINA [2007] NSWCCA 236 | Case summary

Friday 27 July 2007 DBW v REGINA Judgment 1 SPIGELMAN CJ: This is an application for leave to appeal against the sentences imposed by his Honour Judge Maguire QC with respect to a number of sexual assault offences. The Applicant pleaded guilty to the offences, which he had committed against three infant children between November 2000 and October 2005. Two of those infants were the Applicant's natural children and the third was a young child whom he was babysitting. 2 The critical feature of the present appeal is that the offending conduct became known as a result of a full confession made by the Applicant, albeit after suspicions had been aroused in the mind of a friend whose daughter was a pupil at the same school as the Applicant's son and who had come to learn of inappropriate sexual conduct by that boy. 3 His Honour summarised the critical facts with respect to the offences as follows: "Sequence 1. On a date between 12 November 2000 and 11 November 2002 the offender masturbated himself in the presence and sight of his son who was aged somewhere between one and two and a half years. I accept that the boy saw and registered what the offender had done. Two similar offences were committed in the same period. Sequence 4. Between 25 April 2004 and 25 June 2005 the offender and his daughter both naked were in the bath together. The child was aged between one and two years. He rubbed his penis on her genital area until he ejaculated. A similar offence was committed in the same period. Sequence 6. During the same time frame while the two of them were again naked in the bath together, the child bit the offender's penis. Three similar offences were committed in the same period. Sequence 10. Between 1 June 2005 and 31 August 2005 the offender was babysitting a neighbour's one year old daughter when he masturbated himself in her presence. He told police, 'I wanted to masturbate and I wanted her to see me'. Sequence 11. During the same period as in sequence 6 while the offender and the daughter were naked in the bath together, he licked her vagina on the outside. Three similar offences were committed in the same period. These offences were all committed in the offender's home in the small rural community [where he lived]. They came to light after the offender's son was found to be interfering with other boys at the local school. The offender was actively involved in the school as a parent. Following the discovery of the son's transgressions, the offender was confronted by a woman friend whose daughter was a pupil at the school. Eventually he confessed to this woman. Then on 17 November 2005 accompanied by his friend … who was a elder of his church - he presented himself to the police at …" 4 The charge referred to as "Sequence 1" was an offence contrary to s61O(2) of the Crimes Act 1900 for which the maximum penalty is imprisonment for seven years. Two other offences were to be taken into account on a Form 1. 5 The charge referred to as "Sequence 4" was an offence contrary to s61M(2) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 10 years. Furthermore, Item 9B of the Table in Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 provides a standard minimum non-parole period of five years for an offence contrary to this section. The other offence referred to was to be taken into account on a Form 1. 6 The charge referred to as "Sequence 6" was an offence contrary to s66A of the Crimes Act 1900 for which the maximum penalty is imprisonment for 25 years. A standard minimum non-parole period of 15 years is specified for an offence contrary to s66A. The other three offences referred to were to be taken into account on a Form 1. 7 The charge referred to as "Sequence 10" was an offence contrary to s61O(2) of the Crimes Act 1900. 8 The charge referred to as "Sequence 11" was an offence contrary to s66A of the Crimes Act 1900. The additional three offences were to be taken into account on a Form 1. 9 On 5 October 2006, the sentencing judge sentenced the Applicant to the following terms of imprisonment: On charge Sequence 10: a non-parole period of 18 months to commence on 17 July 2006 and expire on 16 January 2008 with a balance of term of 18 months to commence on 17 January 2008 and expire on 16 July 2009. On both charge Sequence 6 (taking into account the offences on Form 1 C) and charge Sequence 11 (taking into account the offences on Form 1 D): a non-parole period of three years to commence on 17 January 2007 and expire on 16 January 2010 with a balance of term of three years to commence on 17 January 2010 and expire on 16 January 2013. On charge Sequence 4 (taking into account the offence on Form 1B): a non-parole period of 21 months to commence on 17 January 2007 and expire 16 October 2008 (scil) with a balance of term of 21 months to commence on 17 October 2008 (scil) and expire on 16 July 2010. On charge Sequence 1 (taking into account the offences on Form 1 A): a non-parole period of two years to commence on 17 January 2007 and expire on 16 January 2009 with a balance of term of two years to commence on 17 January 2009 and expire on 16 January 2011. 10 The Applicant was sentenced to an effective minimum term of imprisonment of three and a half years, to commence on 17 July 2006 and to expire on 16 January 2010, with an additional term of three years to commence on 17 January 2010 and to expire on 16 January 2011. The effective non-parole period is therefore 54 percent of the effective head sentence. 11 His Honour summarised, in a manner to which no objection is taken, the evidence concerning the subjective features of the Respondent including a Probation and Parole Report, and his assessment by psychologists, together with the written testimonials and the Applicant's own evidence. It is unnecessary to set out this evidence. His Honour concluded that the Applicant had a good prospect of rehabilitation, subject to accepting appropriate guidance. He made a finding of special circumstances by reason of the need for an extended period of supervision. 12 There is no ground of appeal asserting that the sentences were manifestly excessive. However, the Applicant alleges error in three respects. 13 The first ground of appeal is that the learned sentencing judge erred in failing to give appropriate consideration to the fact that the Applicant voluntarily disclosed his guilt of the offences in circumstances where it was unlikely that the authorities would have discovered his guilt. 14 That a consideration of this character is a factor entitled to significant weight in the sentencing exercise is well established. It is a matter to be taken into account over and above the consideration to be given to a plea of guilty. (See R v Ellis (1986) 6 NSWLR 603 esp at 604; R v Thompson (2000) 49 NSWLR 383 at [138]; Ryan v The Queen (2001) 206 CLR 267 at 272; R v Lewins (2007) NSWCCA 189 at [17]-[18]). 15 As Ms B Rigg, who appeared for the Applicant, submitted in this Court there was substantial evidence of the Applicant's contrition and also of his prospects of rehabilitation. His contrition was plainly of the highest order and his prospects of rehabilitation were clearly very good, as his Honour found. Nevertheless his confessions were accordingly more than simply corroboration of these matters. 16 On the facts of the case, it is quite clear that the particular offences would not have been discovered but for the Applicant's complete confession. The children involved were very young. Nevertheless, by reason of the suspicion that had arisen in the mind of the other parent at the school, concerning the inappropriate behaviour of the Applicant's son, and the fact that that son was subject to some treatment by reason of that behaviour, there was a real probability of a course of investigation that would reveal some offending behaviour. This does not, however, detract from the entitlement of the Applicant to a significant amelioration of his sentence for his prompt and full confession, and for the high level of contrition which was manifest by his conduct in this respect. 17 The sentencing judge does not expressly refer to this consideration in his remarks on sentence. However, he does refer both to the confession to the other parent and to the Applicant's attendance at the police station where he eventually made a complete confession. In the course of submissions on sentence R v Ellis was expressly referred to and the Crown accepted that it was applicable. 18 Plainly it would have been preferable for his Honour to expressly acknowledge the significance of this factor. Nevertheless, I am quite satisfied that his Honour took it into account and gave it substantial weight. The best indication of the weight that his Honour gave was the actual sentences imposed by his Honour. Given the objective seriousness of the offences against very young children, and the continuation of the offending conduct over a period of time with multiple victims, the effective non-parole period of three and a half years with an additional term of three years indicates that his Honour gave the Applicant a high degree of leniency. Although there were a number of subjective features that must have contributed to that leniency, there is no doubt in my mind that the voluntary confessions made by the Applicant, where his conduct would in all likelihood have not otherwise been discovered, played a significant role in his Honour's final determination. 19 This ground of appeal should be rejected. 20 The second ground of appeal is that the sentencing judge erred in making an observation that the Applicant's son had been adversely affected by the Applicant's crimes. 21 This is not a matter which arises from any comment made by his Honour in his remarks on sentence. The relevant comment was made in the course of submissions on sentence. In the course of the Crown's submissions concerning the emotional harm to the victims, the Crown made submissions about what may happen to the victims when they were older. At this point his Honour interrupted to say: "Well, it is worse than that here, because whilst it is often said that one doesn't know the effects of child abuse upon a child, and it may not manifest itself for a long time, so far as the little boy is concerned, his life has already been adversely affected." 22 He went on to say: "He was already demonstrating anti social behaviour which is clearly the fruits of his father's crime." [T7] 23 The Crown indicated agreement with his Honour's remarks. No submission to the contrary was made by counsel appearing for the Applicant. If this perfectly logical inference was to be challenged, it could and should have occurred during the course of submissions. The Applicant's counsel was given an express opportunity to make further submissions (T8 line 8). 24 Indeed, the psychologist's report, upon which counsel for the Applicant primarily relied, expressly stated that it was the Applicant's own realisation that there was such a causal connection that had triggered the Applicant's confession. The Report said: "While [the Applicant] initially appears to have been in denial of the possible impact of aberrant sexual behaviour on the children involved, when he realised his son was showing signs of having been sexually abused he sought professional treatment for the child. When he realised his own aberrant sexual behaviour was the issue [the Applicant] made frank confessions and reported himself to Police." 25 This observation goes beyond simply a statement of the Applicant's belief. It reflects the professional view taken both by the person treating the son and the psychologist preparing this report that such a link was probable. 26 In written submissions in this Court counsel for the Applicant submitted that no conclusion of the character his Honour drew was reasonably available. The proposition that the child was behaving in an inappropriate way was said to have been based on hearsay. It was also submitted that there was no evidence attributing the behaviour of the child to the misconduct of the Applicant. Specifically, it was submitted that some form of expert evidence was required to draw the causal connection. 27 It is not usually the case that remarks by a sentencing judge in the course of submissions should be regarded as a matter to which his Honour had regard when imposing the sentence, as in this case, some months later. Nevertheless, his Honour's remarks on sentence are not so comprehensive as to enable this Court to dismiss the possibility that this matter was not still in his Honour's mind. 28 As to the conduct of the son being hearsay that is not a pertinent submission. The fact that such conduct had occurred was accepted by all. In any event, by s4 of the Evidence Act 1995, that Act does not apply to sentence proceedings unless the Court makes a direction to that effect. There was no such direction. 29 Nor is it necessary, in my opinion, for there to be expert evidence on matters have become common knowledge and are, in principle, capable of inference on the basis of common sense. The possibility of a link between the Applicant's conduct and his son's behaviour was, in my opinion, an inference open to be drawn by his Honour and to be so drawn beyond reasonable doubt. In any event, as noted above, there was express reference to such a causal relationship in the Report of the Applicant's psychologist. 30 In my opinion this ground of appeal should also be rejected. 31 At the hearing of this appeal, the Applicant raised a third ground of appeal. It was submitted that his Honour erred in his treatment of s21A of the Crimes (Sentencing Procedure) Act. It was submitted that, although his Honour referred to s21A he did not indicate how he had considered matters of aggravation. This ground overlaps with the second ground. 32 His Honour's actual reference to quote it, was as follows: "I am mindful of the provisions of s214 and have taken them into account." 33 The obligation to give reasons requires a sentencing judge to identify which matters have been taken into account. However, a general reference of the character made by his Honour to the effect that he had generally taken into account s21A may indicate no more than that he had considered the whole list of aggravating and mitigating factors but had given weight to those identified in his remarks on sentence. 34 The Applicant referred to observations in this Court in R v Wickham [2004] NSWCCA 193 at [31] and R v Wilson (2005) 62 NSWLR 346 at [42] where the sentencing judge or the Crown in submissions made reference to specific matters of aggravation but made no express finding about those matters. In the present case the Applicant submits that his Honour's reasons were defective by failing to identify which matters of aggravation he had considered. It was also submitted, perhaps in the alternative, that the Court should infer that he had accepted the Crown submissions on the substantial degree of harm. 35 Again the Applicant relies on the same observations made in the course of submissions, but on this occasion by the Crown, rather than by his Honour. Particular reliance was placed on the Crown submissions that substantial harm would be caused to the victims. This is an aggravating factor within s21A(2)(g). 36 The obligation to give reasons requires a sentencing judge to identify which matters have been taken into account. I have already indicated that. 37 But in my opinion, there is no proper basis for the inference in this case that his Honour must have accepted the Crown submissions of substantial harm. I am not minded to follow the observations of Hunt AJA said in Wilson at [42] what would "usually" occur in an appellate court in this regard. This Court should not infer that his Honour did act on the basis of the submissions of substantial harm but failed to state his reasons. 38 In any event, I should observe that his Honour would have been entitled to act on the basis that there was a substantial harm. 39 The Applicant referred to R v Muldoon an unreported decision of this Court of 13 December 1990. In that case observations were made by Hunt J, as his Honour then was, concerning the kind of evidence that should be adduced in order to conclude what impact there would be by way of future harm to very young children who had been the subject of sexual abuse. The most significant thing about this judgment is its date. Unfortunately, over the last few years, the public and the courts have become much more aware of, and knowledgeable about, the effects of child sexual abuse. His Honour's observations in Muldoon are of no assistance today. 40 In my opinion, the Crown in its submissions, and his Honour in the exercise of the sentencing discretion, would have been entitled to proceed on the basis that there was a substantial risk of emotional harm arising from the Applicant's conduct. In any event, as I have noted, the psychologist's report in this case accepted effects of the very character discussed in Muldoon. 41 In my opinion, the orders of the Court should be leave to appeal granted, the appeal dismissed. 42 SIMPSON J: I agree. 43 HARRISON J: I also agree. 44 SPIGELMAN CJ: The orders of the Court are as I have indicated. **********

DBW v REGINA

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