DH v R

The facts of the offences

1. At the sentencing hearing the Prosecutor tendered an agreed statement of facts. The applicant gave evidence and did not contest those facts in any way. The facts recounted some eight specific incidents which formed nine counts on the indictment originally presented. The second count was discontinued and counts three, five, six and seven were placed on a Form 1, to be taken into account in sentencing in respect of count eight.
2. Speaking generally, the offences arose out of an abusive sexual relationship between the applicant and the daughter of the applicant's partner. It commenced when the applicant's partner was pregnant in June 2008. At that time, the victim was aged eight years and nine (or perhaps 10) months.
3. The statement of facts set out the details of the particular offences as follows: "[The Complainant] was born in the middle of August 1999. She has an older brother [REDACTED]. Her mother [REDACTED] commenced a relationship with the accused [DH] in 2007. [The Complainant's mother] fell pregnant shortly after and the family moved in together. [The Complainant's mother] gave birth to their daughter [REDACTED] [in mid-August 2008]. Count 1 Around June 2008, the Complainant (8 y/o at the time) went to bed with her pregnant mother and the accused. She was on one edge of the bed, with her mother in the middle, between her and the accused. She had pyjamas on. She woke up to the accused rubbing her vagina under her clothing. She noticed she was now in the middle of the bed and the accused was laying next to her. The Complainant asked "what are you doing?" but the accused did not respond. He continued rubbing her vagina. Feeling uncomfortable, the Complainant got out of the bed and left the room. She told the accused she was going to the toilet when he asked where she was going. She sat outside for a while before going to the lounge room, waking her brother up and watching TV before falling asleep on the lounge. Count 2 [No further proceedings] Count 3 Form 1 In July 2008 the family moved to [REDACTED]. This was a three bedroom house where the Complainant had her own room. Around Christmas time 2008 the Complainant was in the shower. The accused entered the bathroom, opened the shower door and started talking to her. He reached into the shower and squeezed the Complainant's buttock, making her uncomfortable. He left the bathroom after she requested he leaves. Count 4 Between February and August 2010, at [REDACTED] address, the Complainant (10-11yo) went to bed in her bedroom, wearing pyjamas. She believes it was a school night. She woke up late into the night to find the accused kneeling down next to her bed with his hand inside her undies and inside her vagina. His hand was moving up and down. She asked him what he was doing to which he just smiled. She pushed him to the chest and he left the room. Count 5 Form 1 Between February and August, 2010 the Complainant was asleep in her pyjamas in her bed. She woke up to the accused licking her vagina. Her pyjama bottoms and underwear had been removed. The Complainant kicked at the accused possibly connecting with his shoulder area. She yelled "what the fuck are you doing". The accused, out of the bed by this stage, told the Complainant to "stop yelling as you will wake everyone up and you will get into trouble". He covered her mouth with his hand. The accused offered her money to not say anything as he would get into trouble. The Complainant told him to "get out" which he did. Count 6 Form 1 There followed a period of time where nothing happened. The Complainant was in Year 5 at [REDACTED] School and the family still resided at [REDACTED]. At one stage in 2010, the Complainant was in the shower getting ready for school. The accused entered the bathroom and got undressed, although the Complainant tried to keep him out of the bathroom. He got into the shower hugging the Complainant, and pressing his naked body against hers. The Complainant pushed the accused in the chest area causing him to lose balance and fall out of the shower to the floor. The Complainant shut the shower door and yelled at the accused to leave the bathroom. The Complainant stayed in the shower until she heard her mother return to the house. She got ready for school and the accused acted as if nothing happened. Count 7 Form 1 In early 2011 the Complainant had started year 6. As a result of constant fights between the accused and [the Complainant's mother], the accused moved into the garage area. The accused would ask the Complainant to go out to the garage area to play the play station with him. On one occasion in early 2011 the two were playing PlayStation at the garage. The Complainant won which made the accused cranky. As the Complainant got up to leave the garage the accused tripped her from behind, causing her to land face down on her stomach splitting her lip. The Complainant went to get up and the accused grabbed her ankles pulling her back towards him. The accused pulled down her pants and undies down exposing her buttock and vagina. He rolled her over onto her back and straddled her. He rubbed her vagina while slapping her leg. The Complainant started punching him in the stomach so he got up. The accused told the Complainant to leave which she did after pulling her clothes on. Count 8 In July 2011 the Complainant's mother left the accused taking the kids with her. They stayed at a refuge for a period. The accused remained at the [REDACTED] address. The Complainant's younger sister was to have an access visit with the accused and it was agreed that the Complainant would also go. The Complainant was sleeping on a mattress in the lounge room with [the Complainant's sister] next to her. The Complainant woke up to the accused on top of her. Her pyjama pants and underwear were down near her ankles and her pyjama top was on. The accused's penis was penetrating her vagina with his body moving up and down. The Complainant told the accused to get off which he did. The Complainant got up and ran to the bathroom and had a shower. The accused tried to talk to the Complainant through the bathroom door offering to "give her $100 the next day if she didn't say anything". The accused told the Complainant that they would both get into trouble if anyone found out. 2015 From 2011 to 2015 the Complainant had very little contact with the accused. In March or April, 2015 the Complainant had an argument with her mother which led to her leaving the family home. Having stayed with friends for some time, the Complainant ran into the accused in town. Finding out she had nowhere to stay the accused offered her a room at his place located at [REDACTED]. Count 9 In October 2015 the Complainant and accused were at home. Both had been drinking and smoking marijuana. They were celebrating something but the Complainant is unsure what. The accused started to flirt with the Complainant which bothered her so she went to bed. The accused continued to pester the Complainant wanting to talk to her through her bedroom door. As he reassured her he would not do anything to her she went back to the lounge room where they played a play station game. The Complainant was tired and decided to go to bed, falling asleep. Later in the night the accused came into her bedroom waking her up and said "I was going to send a message to police if (she) didn't do what (he) wanted." The Complainant, who was drunk, became upset and started crying. The accused kept asking what was wrong with her. They commenced arguing. She says the accused became "more aggressive". The accused knelt next to her bed wanting to talk to her, but she didn't respond. He got into the bed, taking off her pants. He got on top of her and had penile vaginal intercourse with her. She kept saying "Get off" but he continued for another 5 minutes, ejaculating onto the bed. He then left the room. The Complainant got up and had a shower and went and slept in the other single bed in her room. The next morning the Complainant packed her stuff up and left. The accused wanted her to stay but the Complainant had decided to stay with her friend [REDACTED]."
4. The victim then discussed these things with a person who cannot be identified. On 21 January 2016, Taree police were notified. Police spoke to the victim who provided a statement in February 2016. Police obtained a surveillance warrant and recorded a conversation between the accused and the victim. The conversation lasted for about an hour and the applicant told the victim that he was in love with her and apologised for what he had done. He said he hated himself and that she could put him in gaol if she wants to. He assured the victim that he had never touched her sister.
5. The contents of the victim's mobile phone were downloaded by police. There were something like 1,350 text messages between the applicant and the victim, most of which were sent by the applicant. The applicant was arrested on 22 February 2016 and refused to participate in an interview.
6. The victim was under the age of 10 at the time of count 1 and count 3 (which was taken into account in sentencing for count 8). In relation to all of the other offences she was older than 10 but less than 16 years of age.

The offender's case

1. The offender gave the briefest of evidence on sentence. He acknowledged his guilt, expressed his unreserved remorse for his behaviour and apologised to the victim, her mother and others who may have been affected by his conduct. He acknowledged the emotional injury that his conduct occasioned. He was not cross-examined. A psychologist's report was tendered on his behalf. It set out his personal history. There was no cross-examination either of the expert (who it seems was not required to give evidence) or of the applicant when he gave evidence.
2. The applicant was 52 years old when he stood to be sentenced. The psychological report did not diagnose the applicant with any particular psychological illness although it did indicate that he had a personality trait that tended to make him "feel worthless, vulnerable, inadequate and unsuccessful and to engage in self-criticism". The psychologist expressed the opinion that the applicant may have committed the offences "in order to have his sexual and emotional needs met; without the fear of humiliation and rejection that he would encounter within his relationship with the victim's mother." She went on to suggest that he "may have also wanted to passively seek revenge against [the child's mother] for what he perceived as her abusive behaviour". There was also a reference to the applicant's regular use of cannabis and the suggestion that this may have "somewhat impaired his ability to make sound decisions and to control his emotions and behaviour".
3. In the end, there was very little in the evidence that explained why it was that the applicant sexually abused his stepdaughter over a period approaching seven or eight years.
4. The most significant of the mitigating features were the applicant's guilty plea, his expression of remorse (particularly in the unguarded, pretext, telephone call) and the fact that he had very little criminal history and no previous offences of sexual misconduct. All of the matters on his criminal history were quite old and none had resulted in a custodial sentence. There was also evidence that he had poor vision in one eye as a result of cataracts and other physical ailments.

Ground 1: The sentencing Judge erred in assessing the objective seriousness of counts 1 and 3 by reference to the maximum statutory age of 16 years

1. Counts 1 and 3 were offences pursuant to s 61M(2) of the Crimes Act 1900 (NSW). At the relevant time, that is between May and December 2008, the offence proscribed by that subsection was in the following terms: Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 10 years. [My emphasis]
2. The section has since been amended. The reference to the age of victims was increased from 10 to 16 years. The victim at the relevant time was either aged nine years (count 3) or just a little younger than nine years (count 1). In assessing the objective criminality of the offence, one of the matters to be considered was the age of the victim relative to the age stipulated in the section creating the aggravated form of the offence and the increased maximum penalty.
3. Through no fault of the sentencing Judge, counts 1 and 3 were incorrectly pleaded. The "statutory age" of the victim was referred to as 16 years rather than 10 years. In the opening paragraphs of the remarks on sentence, the sentencing Judge set out the terms of the indictment rather than the terms of the statute. This was understandable because, it seems, the Judge was not made of aware of the relevant amendment. The sentencing Judge referred to the Prosecutor's submission to the effect that s 61M(2) refers "to a child under 16 years of age" and "that the younger the child the more defenceless and vulnerable" they are. When asked to address the objective seriousness of count 1, the prosecutor said, "In relation to count 1, it's the rubbing of the vagina underneath the clothing. Your Honour will appreciate that the complainant is eight years of age. The Crown would say in terms of indecent assault, that certainly is at the mid-range."
4. The remarks that followed suggest that his Honour accepted that submission. In particular, in referring to the objective criminality in respect of count 1 his Honour said: "I accept the Crown's submission that the criminal conduct involved in Count 1, which involved the rubbing of the complainant's vagina under her clothing when she was asleep with her mother and the offender, at 8 years of age, constituted offending within the mid-range of objective seriousness for an offence pursuant to s 61M(2) of the Crimes Act 1900, given the vulnerable age of the complainant."
5. His Honour made other similar remarks throughout his judgment on sentence. Contrary to the submissions of the respondent, there is nothing either explicit or implicit in his Honour's remarks to suggest that his Honour was aware of the correct statutory age.
6. While the sentencing Judge was led into the error upon which the applicant relies, the inescapable conclusion is that the assessment of the objective gravity of count 1 and count 3, albeit that count 3 was not subject to a separate sentence, was affected by his misunderstanding of the relevant statutory age. This is a material error in the sentencing process.
7. Accordingly, ground 1 must be upheld.

Ground 2: The sentencing Judge erred in finding that s 21A(2)(l) of the Crimes (Sentencing Procedure) Act applied to the principal offences

1. The error asserted in ground 2 is different from that asserted under ground 1. However, the two grounds are at least somewhat related. The applicant relies on the following remark: "I accept the Crown's submission that the following aggravating features apply to each of the offences, pursuant to s 21A(2) namely: (1) s 21A(2)(eb) the offences occurred in the home of the complainant; (2) s 21A(2)(l) the complainant was 8 years old and the step-daughter of the offender, she was therefore a vulnerable victim. (3) s 21A(2)(k) the offences occurred at a time when the offender was the stepfather of the complainant and therefore in a position of trust."
2. I have emboldened and italicised the impugned passage.
3. The reference to the vulnerability of the victim appears to have been made on the basis that she was aged eight or nine when the offence related to children under the age of 16. The statute at the time meant that the offence (in counts 1 and 3) related to children under 10. It was an error to assess the age of the victim as making them vulnerable in those circumstances. All children caught by the provision are necessarily vulnerable and this particular child was not very much younger than the 10 years of age prescribed by s 61M(2) at the time.
4. Further, and while it may well have been a slip of the tongue (notwithstanding the judgment on sentence was reserved for a short while) the reference to "each of the offences" may suggest an error in taking into account the vulnerability of the victim based on her being eight or nine years of age. She was older, albeit still a vulnerable child, when the later offences were committed.
5. Accordingly, ground 2 is also established.

Resentencing

1. Because error is established this Court must exercise the sentencing discretion afresh in accordance with the High Court's decision in Kentwell v The Queen. [1] Error having been established, the appropriate question is whether a different, less severe, sentence is warranted. [2] It is unnecessary to resolve ground 3 (manifest excess) under which it would be necessary to pay deference to the wide discretion residing in the Judge at first instance and to determine whether the sentence standing alone is manifestly excessive, plainly unjust or wrong. [3] Rather, it is for the Court to re-exercise the discretion, taking into account all relevant circumstances. If the sentence so assessed is less than that imposed by the sentencing Judge, that is the sentence that should be imposed on appeal.
2. I have taken into account all relevant factual circumstances and sentencing principles both at common law and under the relevant legislation. It is not necessary to set these matters out in detail. I have concluded that a less severe (aggregate) sentence is warranted. Like the sentencing Judge, I would impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999. The proper approach to s 53A (and associated sections) has been considered in a number of cases. [4] Like the sentencing Judge I would apply a 10% reduction in the indicative sentences to reflect the utilitarian value of the plea of guilty. I am unable to find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999.
3. I approach the standard non-parole periods applicable in each case in accordance with the High Court's decision in Muldrock v the Queen, [5] noting that it is not strictly applicable because the sentence was not imposed after trial and the offences do not all fit within the mid-range of objective seriousness.
4. I note in passing an oddity in the putative or indicative sentences settled on by the sentencing Judge and analysed by the applicant in his arguments under Ground 3. The oddity is that the indicative sentence for Count 8 (which involved penile vaginal penetration when the child was aged 11 years and 10 ten months, and in relation to which four other serious offences were taken into account) was 5½ years with a non-parole period of 4 years. That is a very lenient sentence in all of the circumstances. By comparison, the sentence for count 9, which took place when the child was 16 years old, was seven years with a non-parole period of 5½ years. It is impossible to reconcile those sentences. However, the appeal is against the aggregate sentence and the indicative sentences I favour for counts 8 and 9 reflect the different circumstances of those counts, the more serious nature of the offence charged in count 8 and the fact that four other offences are to be taken into account in sentencing for count 8.
5. I have rounded down the indicative sentences and non-parole periods in order not to impose sentences expressed in days based around the application of rigid mathematical formulae. Insofar as it is necessary, I find special circumstances for that purpose only. The indicative sentences I favour are these: Count 1 - a starting point of 2½ years, reduced by 10%, resulting in a sentence of 2 years and 3 months with a non-parole period 1 year and 8 months. Count 4 - a starting point of 2½ years, reduced by 10%, resulting in a sentence of 2 years and 3 months with a non-parole period of 1 year and 8 months. Count 8, (taking into account the remaining counts 3, 5, 6 and 7) - a starting point of 6 years, reduced by 10%, resulting in a sentence of 5 years and 4 months with a non-parole period of 4 years. Count 9 - a starting point of 5 years, reduced by 10%, resulting in a sentence of 4½ years with non-parole period of 3 years and four months.
6. I would impose an aggregate sentence of 10 years with an aggregate non-parole period 7½ years.
7. Accordingly, the orders I favour are as follows: 1. Application for leave to appeal granted. 2. Appeal allowed. 3. The aggregate sentence imposed in the District Court is quashed and in lieu thereof: 4. The applicant is sentenced to an aggregate sentence comprising an aggregate non-parole period of 7½ years commencing on 16 November 2017 and expiring on 15 May 2025 with a balance of parole of 2½ years commencing 16 May 2025 and expiring 15 November 2027.
8. N ADAMS J: I agree with the orders proposed by Hamill J for the reasons provided by his Honour.

Endnotes

1. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
2. Criminal Appeal Act 1912 (Cth), s 6(3).
3. Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at 671-672 [15], Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ).
4. See, for example: JM v R [2014] NSWCCA 297, R v Cahill [2015] NSWCCA 53, Glare v R [2015] NSWCCA 194, Bao v R [2016] NSWCCA 16 and PG v R [2017] NSWCCA 179 (per Button and Adams JJ). For aggregate sentencing for offences attracting a standard non-parole period, see also s 54B(4).
5. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2019