DOUSHA, Malcolm Ross v R

DOUSHA, Malcolm Ross v R - [2008] NSWCCA 263 - NSWCCA 2008 case summary — Zoe

[21]

Non-parole period of 3 years to commence on 5 October 2011 and conclude on 4 October 2014 with an additional term of 3 years and 6 months to conclude on 4 April 2018. 7 The order for partial accumulation resulted in an overall sentence of imprisonment of 10 years and 6 months with a non-parole period of 7 years to commence on 5 October 2007. A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 was reflected in the structure of the individual sentences. One of the questions that arises on the appeal is whether her Honour's finding of special circumstances was adequately reflected in the ratio between the non-parole period and the balance of the term as component parts of the overall sentence. 8 The evidence tendered on sentence comprised an agreed statement of facts, a report from Ms Mayell, psychologist, and a letter from a general practitioner concerning the ill health of the applicant's mother. SK read a victim impact statement in open court. A victim impact statement from LK was tendered. The applicant did not give evidence nor was there any evidence called on his behalf. Accordingly, her Honour's findings of fact as they concerned the context in which the offending occurred, the circumstances particular to each count and the applicant's subjective circumstances were drawn entirely from the facts as agreed (inclusive of the account given to police by the applicant on his arrest) and Dr Mayell's report which was prepared after a three hour interview with the applicant and a telephone interview with the applicant's wife and mother. 9 Her Honour was satisfied that the offending was a planned and deliberate course of continuing criminal conduct. The applicant, who was aged in his late 20's at the relevant time, lived in the same residential unit block as the children and their father who worked late hours as a courier. He was separated from the children's mother. Her Honour was satisfied that the applicant took the calculated step of assuming the responsibility of attending to the children after school in order to prey upon them and that he organised his holidays to coincide with school holidays. 10 The facts in relation to each count were recited by her Honour as follows: Counts 1, 2 and 3 : Between the April and July school holidays in 1986, the applicant slid his hand under SK's netball bloomers and touched her on the genital area outside her underpants whilst she was sitting on the sofa beside him. He then placed his hand on her back and put his other hand back inside her bloomers and then inside her underpants touching her on the outer labia. SK held her legs together in an obvious effort to resist the assault. The applicant said, "This will be a lot easier, you'll enjoy it more if you relax". As a continuation of the same incident, the applicant moved his hand up to the top of SK's bloomers and put his hand down into her underpants touching her on and around the vagina. The applicant said something like, "You are very dry". He then removed his finger and moistened it with saliva before putting it back down into her underpants. Count 4 : In 1988 or 1989, on a weekday afternoon, SK and LK were naked and lying face down on the couch on either side of the applicant with their feet towards him. The applicant rubbed SK's genital area.

[26]

15 In so far as the applicant's subjective circumstances were concerned her Honour noted that the applicant was one of four children raised in country New South Wales and that he shared a close family relationship with his parents and siblings. He left school at the end of year ten and commenced an apprenticeship in carpentry which he did not complete. In 1979 he obtained work in Sydney as a cleaner with Telstra from which he took a redundancy in 1997. He has worked only casually since that time. He was married briefly in 1994 and commenced a relationship with his current partner in 1999. They have a son who was aged seven at the date of sentence. Her Honour accepted that the family unit was stable and that the applicant is a loving and attentive father and husband. 16 The applicant reported to the psychologist that he endured some bullying at school and that he was anxious and depressed much of the time. He also claimed that he was sexually assaulted when he was 13 and that this exacerbated the problems he was experiencing at school. He reported that he came to the realisation as a young adult that he might be a danger to children because of his attraction to young girls and in the 1980's sought psychiatric assistance. Although there was no independent record of the fact that assistance of that kind was sought, or that he was treated with medication to inhibit his sexual desire, the Crown did not put these matters in dispute. 17 The applicant told the psychologist that when he stopped taking the medication inappropriate feelings for young girls resurfaced and that he tried to arrange another appointment with the psychiatrist. He claimed that the offences for which he was sentenced occurred whilst he was waiting for an appointment. He said that when he next saw the doctor he was given medication that assisted him to overcome his inappropriate feelings. He went on to claim that he had ceased taking the medication altogether some time ago because he no longer felt any inappropriate attraction to young girls and had not felt the need for continued treatment. That said, he also informed the psychologist that he took precautions not to be in a situation where young girls were present and that he would absent himself if he found himself in compromising situations. 18 Her Honour was not satisfied that the evidence established when the applicant first sought treatment for his attraction to young girls or the course of any treatment that he has obtained since that time. Her Honour did observe, however, that it seemed unlikely that the offences were committed whilst he was waiting for an appointment with a psychiatrist given that they were committed over a period of three years. In addition, while acknowledging that there was no evidence of any reported sexual impropriety with young girls since 1989, the material tendered on sentence did not enable her Honour to conclude with any certainty that the applicant was not attracted to young girls or that he dealt with his feelings by absenting himself from their company. Her Honour noted that in the opinion of the psychologist the applicant presented with a number of cognitive distortions typical of child sex offenders. For example, his contention that many young girls he has encountered have developed a "crush on him" was indicative, in her view, of a cognitive distortion of that kind and that this sustained belief indicated a need for intensive intervention and comprehensive treatment beyond the prescription of anti-libidinal drugs. The psychologist also expressed the view that the applicant's belief that he does not need help, or need to make changes in his life or attitudes, was typical of child sex offenders such that compulsory treatment is often required because the offender lacks the insight to see that treatment is called for.

[32]

25 The balance of the grounds of appeal challenge her Honour's finding that there was no evidence that the applicant was rehabilitated and her failure to give any weight to the fact that the applicant was sexually assaulted as a child. Ground 1: Her Honour erred: (a) in concluding that the offences were clearly representative of a course of conduct which continued over a course of years; and (b) in concluding that "it is also clear that these offences were not isolated lapses which might have called for some leniency". 26 This ground was not addressed in the applicant's written submissions. In oral argument it was submitted that by referring to the offences as representative of a course of conduct her Honour exceeded what was the settled position of the parties as reflected in the indictment and the agreed statement of facts. This, it was submitted, exacerbated the objective gravity of the offending generally and infected the sentencing discretion as a result. 27 The Crown presented its case on sentence on the basis that the only conduct attracting criminal sanction was contained in the eight counts on the indictment which reflected a course of conduct extending over a period of three years. I am satisfied that her Honour's finding that the counts were representative of a course of conduct was in order to emphasise the distinction between the leniency that might be extended for an isolated instance of misconduct as distinct from repeated and discrete misconduct. Her Honour expressly recognised that it was fundamental to the sentencing process that the applicant only be sentenced for the matters to which he had pleaded guilty (R v JCW [2000] NSWCCA 209; 112 A Crim R 466). There is nothing in any of the individual sentences suggestive of the fact that her Honour sentenced the applicant for any uncharged conduct. Ground 2: Her Honour erred in holding there was no evidence that the applicant has been rehabilitated 28 The primary submission advanced by the applicant was that the evidence bearing upon the question of rehabilitation compelled a finding in his favour and that he was wrongly deprived of that finding in mitigation of sentence. In seeking to persuade her Honour that he had rehabilitated, the applicant relied upon the fact that after appreciating the risk that he would, or might, misconduct himself with young girls he voluntarily sought psychiatric intervention in the 1980's and had thereafter successfully resisted any temptation to misconduct himself by ensuring he was not exposed to young girls. In addition, counsel sought to emphasise that he had not in fact re-offended and that he was in a long-term and stable relationship. 29 The report of the psychologist tendered on the applicant's behalf on sentence was to the contrary effect so far as actual rehabilitation was concerned. In Ms Mayell's view, both the applicant's profile and his attitude as revealed in the clinical context indicated persisting features of paedophilic orientation of sufficient significance to warrant the applicant being offered intensive and comprehensive treatment. It was submitted on the applicant's behalf that the phycologist's opinion was not inconsistent with a finding that the applicant was rehabilitated since, despite residual characteristics of the kind identified by her, he had not re-offended.

[36]

35 It is also important to note that the sentence the subject of review in Clare was passed in accordance with the Parole of Prisoners Act 1966 where the ratio of head sentence to non-parole period were not prescribed as is the case under the current sentencing legislation. That Act was repealed by the Probation and Parole Act 1983 which commenced on 27 February 1984. No statutory ratio between head sentence and non-parole period was provided for under that Act. Each of the offences that the applicant pleaded guilty to occurred after that date. The Probation and Parole Act was repealed by the Sentencing Act 1989 which commenced on 25 September of that year. It was later repealed and replaced by the present Act. The Sentencing Act introduced a statutory proportion between head sentence and non-parole period for the first time subject to a finding of special circumstances. The applicant's offences straddle both the Probation and Parole Act and the Sentencing Act, in that counts 4 and 5 allege an indecent assault against SK which occurred between the 2 January 1988 and 31 December 1989 and a sexual assault committed against her between the same dates. Whether or not the offences constituted by counts 4 and 5 were subject to the Sentencing Act or the Probation and Parole Act is, however, entirely a matter of conjecture. In any event, her Honour found special circumstances established in the applicant's case and varied the statutory ratio for each of the individual offences to a range between 50 and 60 per cent. Even if the Probation and Parole Act was the sentencing legislation in operation, the ratio between head sentence and non-parole period fixed by her Honour was commensurate with what Howie J noted in AJB v R [2007] NSWCCA 51; 169 A Crim R 32 at [39] to be the fixing of a non-parole period between a half and a third of the term of the sentence under the Probation and Parole Act. 36 The other cases to which the applicant referred her Honour, and to which reference was made on the appeal, are for other reasons in my view wholly distinguishable. 37 In Ibbs v The Queen (1987) 163 CLR 447, the High Court granted special leave to appeal against a sentence imposed on an appellant who was convicted of what was then the relatively new offence of sexual penetration without consent under s 324D of the Criminal Code of Western Australia. The complainant was an adult woman who had been invited by the appellant's wife to have sexual intercourse with her husband. She participated in consensual sexual intercourse with the appellant on multiple occasions prior to the occasion giving rise to the offence. On that occasion she withdrew her consent to intercourse after it had commenced consensually. On conviction a sentence of 4 years imprisonment was imposed. The High Court intervened on the basis of what was said to be a demonstrated and gross violation of the principles which ought to guide a sentencing discretion where in the particular circumstances of that case the complainant had consented, or was honestly or reasonably believed by the appellant to have consented to the act of penetration by which intercourse was commenced but where consent was withdrawn in the course of that sexual act. 38 In R v Jordan [1983] NSWCCA 254, sentences were also imposed under the Parole of Prisoners Act on three counts of indecent assault on a female under 16 pursuant to s 76 of the Crimes Act (now repealed). That offence carried a statutory maximum of 6 years and is in like term to the six counts on the subject indictment charging an indecent assault contrary to s 61E(1)(A) of the Crimes Act. An aggregate of 8 years imprisonment was imposed with a non-parole period of 4 years. The Court was of the view that a sentence of 8 years against a statutory maximum of 6 years for each offence was excessive despite the Court confirming that partial accumulation across the body of offending was appropriate. In so far as the non-parole period was concerned, the Court considered that the applicant's extremely favourable rehabilitative prospects, in particular the success the applicant had demonstrated in dealing with an alcohol addiction, justified a 2 year non-parole period. 39 The case of R v Lyne [1982] NSWCCA 84 also involved an adult victim. The Crown appealed against the inadequacy of a 3 year good behaviour bond imposed on an offender who picked up a hitchhiker, overpowered her and sexually assaulted her. The appeal was allowed and the offender was sentenced to 2 years imprisonment with a non-parole period of 6 months. Not only was the sentence imposed following a successful Crown appeal, the case is wholly distinguishable and gives no indication at all as to any relevant sentencing pattern in respect of the offences for which this applicant pleaded guilty. 40 Against the number of cases and their marked dissimilarity both from each other and the applicant's case, it is hardly surprising that her Honour was unable to discern any reliable sentencing pattern that was current at the time of the applicant's offending in respect of the offences which were under consideration. 41 By analogy with Featherstone v R [2008] NSWCCA 71 the applicant sought to argue that a modest sample of cases of what was submitted were broadly similar sexual offences to those in the present case ought to have attracted a similar outcome. In Featherstone the Court was satisfied that despite the review of a small sample of cases there was a sufficient similarity between the offences to which those cases referred and the case under consideration to support the proposition that there has been a significant upward trend in the length of sentences for offences of that particular character in recent years. It was an impression that Bell JA held accorded with her recollection of the pattern of sentences for sexual offences before the introduction of the Sentencing Act. On the basis of both impression and recollection, her Honour considered that error had been demonstrated in the sentences imposed at first instance. 42 Featherstone is not authority for the proposition that whenever a small number of cases are presented a sentencing judge should be able to discern a sentencing pattern. To the contrary. It is simply a statement by the Court that on that particular occasion, and having regard to the information placed before it, a pattern could be discerned. As I have sought to make clear I do not regard it as open to the sentencing judge in the present case to have discerned a pattern from the very limited number and wholly dissimilar range of cases placed before her. 43 In the absence of statistical and non-statistical data her Honour was obliged to adopt the approach which was settled in R v MJR [2002] NSWCCA 129; 54 NSWLR 368. Her Honour was provided with MJR together with a case note of AJB v R [2007] NSWCCA 51; 169 A Crim R 32 which both confirmed the correctness of that approach and developed it. 44 In both AJB and MJR particular attention was directed to the proper approach to the specification of the non-parole period in cases where the offences were committed prior to the introduction of the Sentencing Act. As Howie J observed in AJB, a non-parole period under the Probation and Parole Act was usually somewhere between a third and a half of the length of the sentence, which might itself be a practice that is sufficient to constitute special circumstances justifying departure from the statutory ratio fixed under the present regime. As his Honour said at [37], this Court "should endeavour to apply the practice that existed in 1982 in specifying a non-parole period because that practice would favour the applicant".

[41]

49 In sentencing for the offences of indecent assault committed against SK between April and July 1986 the applicant submitted her Honour failed to give appropriate weight to the applicant's previous good character. Although her Honour did not refer expressly to the fact that the applicant had not offended against the criminal law prior to 1986 the recitation of his subjective circumstances made that plain. While an offender's previous good character must be taken into account on sentence its weight as a matter in mitigation of sentence will vary depending on the circumstances of the offending (Ryan v R [2001] HCA 21; 206 CLR 267 per McHugh J at 275). In the context of offending constituted by a course of repeated sexual offending against young children a claim for good character does not entitle an offender to the leniency that might otherwise be available (see R v PGM [2008] NSWCCA 172 at [43] and [44]). Having regard to the sentences imposed in respect of counts 1, 2 and 3, and the fact that within the same general timeframe LK was also indecently assaulted, I am not satisfied that her Honour failed to give the applicant's previous good character such weight as it deserved. 50 The applicant submitted that each of the sentences was excessive, given her Honour's finding that the objective seriousness of the indecent assaults on the two sisters placed the assaults at the lowest end of criminal behaviour comprehended by the section. In particular it was submitted that sentences of increasing severity for counts 1, 2 and 3, when they were effectively a continuation of the one incident, was not warranted. It would appear that although her Honour regarded each of the three offences as at the lower end of the spectrum, she imposed different sentences so as to reflect the different character of the particular assault, including the degree of physical contact involved and the extent to which it involved any genital touching (see GAT v R [2007] NSWCCA 208 at [22]). Viewed in this way, the sentence of 20 months with a non-parole period of 12 months where the child was touched outside her underwear (count 1), and a sentence of 2 years and 6 months with a non-parole period of 18 months where she was touched repeatedly on and around her vagina (count 3), does not reveal error. The fact that her Honour ordered that the three sentences be served concurrently, reflected the fact that they were a continuation of the one episode, albeit involving touching that was progressively more invasive. After allowing for the discount for the pleas of guilty and that the offences were historic, the Crown accepted that against a maximum of 6 years the sentences were at the high end of an available range but submitted that the range was not exceeded. The applicant has not persuaded me otherwise. 51 Although ground 7 challenges each of the individual sentences as being excessive no submission was advanced in support of the proposition that the sentence of 3 years and 10 months with a non-parole period of 2 years and 4 months imposed for the counts of sexual intercourse when SK was aged 10 or 11, and a sentence of 6 years and 6 months with a non-parole period of 3 years for the count of sexual intercourse when LK was aged 5 or 6 exceeded her Honour's legitimate sentencing discretion. Ground Six: Her Honour erred in ordering partial accumulation of some of the sentences

[44]

54 I have already referred to the partial accumulation of counts 1, 2 and 3. I note that count 4, committed against SK some years after that offending, was accumulated by 12 months such that the four offences of indecent assault attracted an effective non-parole period of 2 years. The count of sexual intercourse constituted by count 5 (committed within the same time-frame as count 4) was then partially accumulated on that effective non-parole period such that the total effective non-parole period for the offences committed against SK was 3 years and 11 months. 55 In so far as LK was concerned her Honour ordered a partial accumulation of each of counts 6, 7 and 8 which resulted in a non-parole period of 5 years and 6 months. I do not regard that term as being excessive having regard to the age of the child, the different maximum sentence that was involved in the charge of sexual intercourse as it involved her and the circumstances in which the offending occurred. The non-parole periods imposed in respect of counts 6 and 7 were then structured in such a way that they were ordered to be served concurrently with the sentences for counts 1 to 5 leaving the non-parole period imposed for count 8 to commence at the expiration of that period. 56 Structured in this way I am satisfied her Honour paid appropriate regard to the principle of totality while conforming strictly to the approach required in Pearce v The Queen [1998] HCA 57; 194 CLR 610. In R v KM [2004] NSWCCA 65 at [55] Miles JA observed: "…. whilst the totality principle is familiar enough and applied commonly enough in favour of an offender in order to avoid an excessive or crushing punishment, it is not to be disregarded for the converse purpose of assessing whether the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation. The task of the court is to ensure that the overall sentence is neither too harsh nor too lenient. Just as totality is applied to avoid a crushing sentence it is not to be disregarded for the converse purpose of assessing whether the overall effect of the sentences is sufficient …" see also Vaovasa v R [2007] NSWCCA 253 at [18]. 57 In circumstances where the offences constituted discrete offending involving two young children and extending over a period of years I do not regard the fact of partial accumulation or its extent as manifesting error warranting intervention. However, in order to ensure that the non-parole period fairly reflects the operation of the sentencing legislation at the relevant time as her Honour intended by the finding of special circumstances, I propose to alter the sentence imposed in respect of count 8 so as to arrive at an effective non-parole period of 5 years. Orders 58 The orders I propose are as follow: 1. Leave to appeal is granted.

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