Doyle v R

Court of Criminal Appeal (NSW)|2021-10-18|Before: Beech-Jones CJ, Hulme J, Dhanji J, Jones CJ

Judgment

BEECH-JONES CJ at CL: This is an application for leave to appeal against an aggregate sentence imposed upon the applicant for six sexual offences committed against children between 1978 and 2010. A further eight offences of a similar nature were taken into account on forms filed by the prosecutor under s 32(1) of the Crimes (Sentencing Procedure) Act 1999 ("Form 1s").
For the reasons set out below, although there were two conceded errors in the sentencing judgment, I consider that no lesser sentence is warranted and the appeal should be dismissed.

The Offences

The facts of the offences were set out in an agreed statement of facts that was tendered before the sentencing judge. The following is a summary of that statement.
At the time of sentencing the applicant was 78 years old. From 1968 until 2013 he was the owner of a movie theatre in Kogarah. He regularly employed young people to work as ushers, service the ticket counter, sell food and clean the theatre at the end of the movie sessions. He sexually preyed on a number of those young workers over a sustained period.
There were five victims of the offences JP, VC, JE, BR and CK.
The two offences committed against JP took place between August 1978 and August 1980 when JP was 14 or 15 years of age and the applicant was between 35 and 37 years old. The applicant recruited JP to work in the theatre selling tickets. The first offence committed against JP was aggravated indecent assault included on a Form 1 attached to count 6. While JP was working, the applicant asked if he wanted to see the camera projection room. Once there, the applicant pulled JP's penis out of his pants and sucked and stroked JP's penis until ejaculation.
The agreed facts record that JP did not return to work to collect his pay but later returned to work after he was lectured by his parents "about responsibility". The second offence against JP was committed when he returned to work, being the indecent assault which was Count 2 on the indictment. JP was directed by the applicant to bring the takings to the applicant's office. The applicant again performed fellatio on JP until ejaculation. The agreed facts record that the incident did not last long. The applicant said, "if you value your job here, you won't tell anyone about what happened, especially [your father]". JP did not return to work at the theatre. Later, the applicant went to JP's house to give him his wages. He told JP "[r]emember what I told you."
One of the counts of indecent assault that was included on the Form 1 attached to count 6 was an offence committed against VC between 11 September 1981 and 28 February 1982 when he was 15 years old. While VC and the applicant were alone cleaning in the cinema, the applicant went over to VC and said "Oh, your belly. That is no good". The applicant patted VC's belly, then pulled VC's overalls apart and exposed his naked genitals while continuing to rub his belly. The applicant said "why, why the belly" and less than 10 seconds later, VC pulled his overalls up. The applicant said, "Oh, sorry… I shouldn't have done that."
Included on the Form 1 attached to count 6 was a count of aggravated indecent assault committed against CK between 15 November 1991 and 14 November 1993 when CK was 14 or 15 years old and the applicant was between 48 and 50 years old. CK applied for a job at the movie theatre. The applicant showed him the projection room and asked CK to take his shirt off and he rubbed CK's belly. This was repeated a week later. Sometime later the applicant invited CK out for a meal and then took him to the applicant's house. The applicant asked CK to lift his shirt up. The applicant rubbed CK's stomach and put his fingers inside CK's pants, touching his pubic hair but he was interrupted by the phone ringing.
Included on the Form 1 attached to count 6 was the first offence committed against JE being a count of aggravated indecent assault committed between 30 November 1996 and 31 March 1997 when JE was about 15 years old. JE had a part time job at the applicant's movie theatre. The applicant invited JE and JE's friend to dinner at a restaurant and offered them alcohol. At the applicant's house after dinner, while swimming in the pool, the applicant grabbed JE's penis on top of his swimmers.
The second offence committed against JE was count 6 being an aggravated indecent assault committed against JE during the period 28 January 1997 to 31 December 1997. By this time the applicant was 54 years of age. While JE was working, the applicant put his hands down the front of JE's pants and undid his pants zipper. The applicant masturbated JE until he became erect. The applicant then stopped and told JE to put his penis away. The agreed facts record that "JE felt ashamed and confused".
Eight offences were committed against BR. BR met the accused in 2006 when he was 11 years old and the applicant was approximately 63 years of age. Around this time BR's family was struggling as his father had cancer. The applicant befriended BR and his family including his brothers. While BR's father was in hospital, BR and one of his brothers would stay at the applicant's house.
The first two offences against BR were committed between 1 July 2007 and 22 March 2008 when BR was 12 and the applicant was between 64 and 65 years old. BR stayed at the applicant's house by himself over a weekend. The applicant kissed BR on the lips and put his tongue in BR's mouth. The applicant took BR to his bedroom and continued to kiss him. This constituted the aggravated indecent assault that was included on the Form 1 attached to count 13. The circumstance of aggravation was that the victim was under the age of 16 years. After this the applicant and BR went out for dinner and then returned. The applicant gave BR underwear and took him to his bedroom. On his bed, the applicant kissed BR and placed BR on top of him, thrusting against him while BR reciprocated. They then went to sleep. BR woke up with a rash around his mouth and the applicant told BR to say that it was wind burn. This constituted count 8 being another offence of aggravated indecent assault.
The agreed facts refer to so‑called "uncharged acts" committed by the applicant around September 2007 in relation to BR whereby the applicant encouraged him to walk around his house naked and pose for photographs wearing swimmers pulled down low.
The third offence against BR was count 9 being an aggravated indecent assault offence committed between 1 September 2007 and 22 March 2008. Again, the aggravating circumstance was that the victim was under the age of 16 years. While BR stayed at his house, the applicant entered the shower naked with BR. Following the shower, they put on underwear and went to the applicant's bed where the applicant kissed BR on the mouth. The fourth offence committed against BR was an act of indecency on a person under the age of 16 years committed shortly afterwards in which the applicant started to masturbate himself. BR copied him and masturbated as well. This was included on the Form 1 attached to count 13.
The fifth to seventh offences were committed against BR between 1 September 2007 and 22 March 2008. While the applicant and BR were kissing on the applicant's bed, the applicant rolled on top of BR and thrust his erect penis against BR's belly button. This constituted an aggravated indecent assault offence included on the Form 1 attached to count 13. After this the applicant and BR lay on their backs next to each other on the bed and the applicant masturbated himself. This constituted an offence of commit act of indecency with a person under the age of 16 years that was included on the Form 1 attached to count 13. Next BR started playing with his erect penis. The applicant then kissed him and masturbated BR until he ejaculated. This constituted count 13 being the offence of aggravated indecent assault.
The eighth offence against BR was committed between 7 July 2009 and 22 March 2010 when BR was 14 years old and the applicant was approximately 66 to 67 years old. The Applicant took BR to see a movie. They returned to the applicant's house and on his bed, the applicant kissed BR on the mouth. This constituted count 14 being an offence of aggravated indecent assault.
The agreed facts also note that, until he was aged 16, BR and his family received a number of gifts from the applicant. BR stopped seeing the applicant at age 16. BR disclosed the offences to friends in 2011 and 2012, his family in 2017 and to police in 2018.

The Sentencing Judgment

Notwithstanding the conceded errors the sentencing judgment was careful and thorough. His Honour summarised the agreed facts and made the findings of objective seriousness noted above. His Honour found that five aggravating factors in s 21A(2) of the Sentencing Act were made out, namely (i) the applicant's record of previous convictions for similar matters for which he was sentenced in 2012 (s 21A(2)(d)); (ii) that, at least for some offences, they were committed in the applicant's home (s 21A(2)(eb)); (iii) the substantial harm caused by the offences (s 21A(2)(g)); (iv) the offender's abuse of a position of trust with count 2, as the employer of JP, and with all counts in relation to BR given the "trust placed in the offender by BR's family" (s 21A(2)(k)); and (v) that the offending involved multiple victims and a series of criminal acts (s 21A(2)(m)) (at [145]). The last matter is the subject of complaint by ground 1 of the appeal. His Honour also found that a mitigating factor was established namely that the offences were not part of a planned or organised criminal activity (s 21A(3)(b)) (at [146]).
Otherwise, I note nine further matters about the sentencing judgment:
First, given the timing of the pleas of guilty his Honour concluded that the applicant was entitled to a 5% utilitarian discount pursuant to s 25D of the Crimes (Sentencing Procedure) Act 1999 (at [147]).
Second, his Honour accepted that the applicant's pleas of guilty involved "some remorse", however the applicant had otherwise demonstrated no remorse or insight, "possibly due to the onset of his neuro-cognitive disorder" (at [148]).
Third, his Honour did not accept that applicant had good prospects of rehabilitation (at [149]). Instead, his Honour found that he "will be at low risk of reoffending upon his release to the community" due to his deteriorating mental health, the onset of dementia and the impact of his depression potentially accelerating his cognitive decline, his age and the period of time he will have spent in custody (at [149]).
Fourth, his Honour noted a diagnosis by a psychologist and neuro-physiologist that the applicant had a profile of hebephilia and considered that that "provide[d] … insight into the offending, together with the previous offending for which he was sentenced in 2012" (at [150]). His Honour also noted and accepted a diagnosis of the applicant suffering from an early dementia condition known as Lewy Body Dementia, which is a gradually progressive disorder with insidious onset typically in one's mid‑seventies (at [46]) as well as a neuro‑cognitive disorder. His Honour did not accept that those conditions had any causal connection with the applicant's offending but did accept that they diminished the importance of general deterrence, albeit that remained "important in sentencing for child sexual offending" (at [150]).
Fifth, his Honour accepted that specific deterrence had "little role to play" given the period the applicant had already spent in custody, the deterioration in his psychological and physical health and his age (at [151]).
Sixth, his Honour accepted that any additional time in custody the applicant served beyond his existing sentence was rendered more onerous for him given his "mental health diagnoses" and that "he may have limited access to treatment for maintenance of his current cognitive condition" as well as the COVID-19 pandemic (at [152]).
Seventh, his Honour noted that pursuant to s 25AA of the Sentencing Act it was not necessary to consider past sentencing practices when sentencing the applicant for historical sexual offences (at [159]). His Honour then noted the applicable maximum penalties and standard non-parole periods for the applicant's offences. In doing so it is accepted that his Honour erred in that his Honour referred to a standard non-parole period for count 6 of 5 years imprisonment when no such period was applicable at the time of offending. His Honour then stated that an aggregate sentence would be imposed and listed the indicative sentences noted above (at [160]).
Eighth, his Honour then addressed totality including by having regard to his existing sentence. By the time of sentencing the applicant had been in custody since 2012. After a trial in 2012 he was convicted on 38 counts of sexual offences that were committed in broadly similar circumstances and over a similar period to these offences. His appeal against his conviction was dismissed but a Crown appeal was allowed. He was resentenced to an overall term of imprisonment of 9 years commencing 4 July 2012 and expiring 3 July 2021 with a non-parole period of 6 years and 6 months expiring 3 January 2019 (Doyle v R; R v Doyle [2014] NSWCCA 4).
By reference to a passage in Porter v R [2019] NSWCCA 117 at [50] his Honour addressed what the overall head sentence would have been had the applicant been sentenced for all the offences the applicant committed at the one time, although this was complicated by s 25AA being applicable to these offences but not to those for which he was convicted of in 2012 (at [162] to [165]). The applicant's sentence was made partially concurrent with his existing sentence. It was backdated to commence from 4 July 2018.
Ninth, his Honour made a finding of special circumstances for the purposes of s 44(2B) of the Sentencing Act having regard to the fact that such a finding was made by this Court in sentencing the applicant in 2014, his various diagnoses and his deteriorating psychological and physical health. I note the effect of his Honour's sentence was, when taken with the earlier sentence, to produce a sentence of 12 years 6 months with a non-parole period of 10 years. While the cumulation of the sentence on the earlier sentence produced an effective non‑parole period that is 80 percent of the total effective sentence, his Honour set the non-parole period of 4 years "to reflect the shortest period of time to be served in respect of the [applicant's] criminal conduct". While not explicitly stated, his Honour appears to have taken the view that the period of 4 years was the minimum period of imprisonment required with respect to the offences he was dealing with: see Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 at 627. This necessarily had a flow-on effect on the ratio between the total effective sentence and the total effective non-parole period.

Grounds of Appeal

The amended notice of appeal contains three grounds as follows: 1. The learned sentencing judge erred in finding that the 'offending involved multiple victims and a series of criminal acts' as a statutory aggravating factor pursuant to section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 2. The learned sentencing judge erred in taking into account a standard non-parole period in respect of Count 6 in circumstances where, at the time of the offence, there did not apply a standard non-parole period. 3. The learned sentencing judge erred in taking into account a standard non-parole period in respect of two Form 1 offences (Counts 4 and 5) in circumstances where, at the time of the offence, there did not apply a standard non-parole period."
The relevant part of the sentencing judgment referable to ground 1 is noted above. The proper construction of s 21A(2)(m) was stated by Hamill J in LN v R [2020] NSWCCA 131 at [133]: "Section 21A(2)(m) provides that it is an aggravating factor where "the offence involved multiple victims or a series of criminal acts". The reference to "the offence" is a reference to the offence for which the offender is to be sentenced. It applies when the offence is constituted by a series of criminal acts; not when an offender has committed a series of criminal offences [citing R v Tadrosse (2005) 65 NSWLR 740 at [28]-[29] and R v Janceski [2005] NSWCCA 288 at [22])."
In this case, the sentencing judge treated s 21A(2)(m) as applicable to sentencing for multiple offences each of which involved a single victim. The Crown correctly conceded that this involved a misconstruction of this provision. It follows that ground 1 is made out.
In relation to ground 2, it was common ground that his Honour erred in sentencing the applicant on the basis that a standard non-parole period was applicable to count 6. Count 6 was committed between 28 January 1997 and 31 December 1997. The standard non-parole period of 5 years for an offence aggravated indecent assault under s 61M(1) of the Crimes Act 1900 was introduced with effect from 1 February 2003 by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002. Given the significance of standard non-parole periods to the sentencing exercise (Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27]), it follows that ground 2 is made out.
In relation to ground 3, at the commencement of the sentencing judgment his Honour incorrectly noted that two of the offences of aggravated indecent assault included on the Form 1 attached to Count 6 also carried a standard non-parole period of 5 years imprisonment (at [2]). Those offences were committed in the 1990s, well before the introduction of standard non-parole periods. However, authority in this Court suggests that of itself this may not be sufficient to vitiate the sentencing discretion (Campbell v R [2018] NSWCCA 17 at [36] to [37] per Campbell J, with whom Latham and Bellew JJ agreed; cf Rizk v R [2020] NSWCCA 291). Given that the other two grounds are established, it is not necessary to consider this further.
Given the conclusion on grounds 1 and 2, it is necessary to independently re-exercise the sentencing discretion (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37).

Re-Sentencing

An affidavit from a friend of the applicants was read on the so called "usual basis" (Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]). He estimates that he has visited the applicant more than 300 times in jail and has spoken to him by telephone more than 4000 times. He describes the applicant's mental state as "verging on catastrophic". He says that the applicant is living in panic from the recent re-emergence of COVID-19. He says that the applicant sounds "incredibly agitated' when speaking and that he, the friend, has "grave concerns for both his [ie, the applicant's] physical and mental state". The Crown read an affidavit which recounts information from Justice Health that the applicant received his first vaccination dose in early September 2021, is due to receive his second dose "no later than 26 November 2021" and there was no record of an earlier request for vaccination from the applicant or any related complaint made on his behalf.
Save for the findings in relation to rehabilitation, the applicant did not take issue with the sentencing judge's findings. Otherwise, the applicant pointed to the sentencing judges' findings about his low risk of reoffending, his deteriorating psychiatric and physical state and their effect on general deterrence, his Honour's consideration of specific deterrence, his age, the onerous conditions of custody including the risks from COVID-19, the finding of special circumstances and the length of time he has spent in custody as factors warranting a lesser sentence. The Crown contended that no lesser sentence was warranted in law (Criminal Appeal Act, s 6(3)).
Other than the stress occasioned to the applicant from the recent COVID-19 outbreak in jails, the material tendered on re-sentence is consistent with the sentencing judge's assessment of how onerous he would find his conditions of custody. Otherwise, I agree entirely with the sentencing judge's assessment of his rehabilitation and prospects of reoffending. The applicant is a serial paedophile. As the sentencing judge found, what renders him unlikely to commit further offences of this kind is his physical and mental difficulties and not some revision in his sexual attraction to young boys.
In RO v R [2019] NSWCCA 183 at [89], I concluded that where an aggregate sentence has been set aside then "at least in some cases, the Court may need to identify the particular indicative sentence that is warranted for each offence prior to the Court forming a conclusion about whether an aggregate sentence that it considers is warranted in law is more (or less) severe than the aggregate sentence the subject of the appeal". In this case I do not consider it necessary to specify the indicative sentences that I would have imposed before concluding that no lesser sentence is warranted in law. Over a thirty-year period, the applicant preyed on and exploited young boys who one way or another were dependent on him. The overall level of criminality he displayed was very grave. Even allowing for the sentence the applicant was already serving, the sentencing judge applied a generous approach to totality in fixing his aggregate sentence and its starting date. Bearing that in mind, the finding of special circumstances, and even allowing for the ratio of 80 percent between the total effective non‑parole period and the total effective sentence, I cannot countenance the imposition of any lesser sentence than was in fact imposed. In reaching that conclusion, I have put aside the finding the subject of ground 1 and the aggravating factors identified by R A Hulme J. In those circumstances, I propose that the appeal be dismissed (Kentwell at [43]).

Proposed Orders

The orders that I propose are: 1. Grant leave to appeal against sentence; 2. The appeal be dismissed.
R A HULME J: Largely for the reasons his Honour has provided I agree with the orders proposed by Beech-Jones CJ at CL.
In my assessment of the sentence that should be assessed in accordance with principles that derive from Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 and subsequent authorities that I do not adopt some of the findings made by the learned sentencing judge as to aggravating factors (which are set out in the judgment of Beech-Jones CJ at CL at [21]).
These findings by the primary judge were made pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and are set out in the judgment of Beech-Jones CJ at CL at [21]. They appear in the remarks on sentence subsequent to, and seemingly divorced from, the judge's reasons for his assessment of the objective seriousness of the offences. In an article, "Section 21A and the Sentencing Exercise" published by the Judicial Commission of NSW in the Judicial Officers' Bulletin, (2005) 17(6) JOB 43, Howie J made a number of points, two of which are particularly pertinent: ● "A judge who goes through the aggravating factors in s 21A(2) at the end of sentencing remarks as some kind of checklist is likely to fall into error by either double counting aggravating factors or by taking into account matters that have no real application to the particular case before the court." ● "[T]he risk of error increases if a judge feels obliged to go through those factors as a task that is independent from the general sentencing exercise of identifying objective and subjective features that are relevant to the sentencing discretion."
Despite its age, the assistance offered by that article to those engaged in the sentencing process remains invaluable to this day.
In approaching the resentencing exercise in this case the erroneous finding brought to light under Ground 1 of the appeal must be put aside. I do likewise with a finding that the offender had a record of previous convictions for similar matters (s 21A(2)(d)). That was a reference to offences committed broadly in the same period as (or "interwoven with" as the Crown accepted in this Court) the offences in question. Similar offences committed within the same period of time do not amount to an aggravating factor merely because by happenstance they were disclosed and led to conviction at an earlier time.
It may be an aggravating factor pursuant to s 21A(2)(eb) if an offence is committed in the home of the victim or some other person. Without reference to any particular offence, the judge took into account that "the offence was committed in the offender's home". True it was that 10 of the 14 offences occurred at the applicant's home but the judge gave no reason why that might have been an aggravating factor. It is not clear to me why that made the offences any worse, or more serious, than they already were, or than those that occurred at the applicant's cinema.
I agree with the other members of the Court that indicative sentences now assessed need not be spelled out. However, I confirm that I have approached the task for each offence by assessing a starting point and then reducing it by the 5% the primary judge allowed for the applicant's (late) pleas of guilty. I do not favour the approach of his Honour in stating a percentage discount which does not transparently explain a result that is in such round numbers.
Having engaged in the resentencing task with these additional factors in mind, I have arrived at the same conclusion as the other members of the Court: that no lesser sentence is warranted. Accordingly, I agree with the orders proposed.
DHANJI J: I have had the considerable advantage of reading the judgment of his Honour Beech-Jones CJ at CL in draft. I agree with his Honour's proposed orders and with his reasons. I would only add the following, which I do not think is inconsistent with what his Honour has said. I have considered the total sentence I would have imposed on the applicant in the re-exercise of the sentencing discretion. While the sentencing judge imposed an aggregate sentence pursuant to s53A of the Crimes (Sentencing Procedure) Act I do not regard it as necessary to indicate whether I would have imposed individual sentences or an aggregate sentence. I have considered the individual sentences I would have imposed or indicated for each of the offences, and the total sentence that would result. Having done so, I am of the view that no lesser sentence is warranted. Like Beech-Jones CJ at CL I do not regard it as necessary to indicate what that total would have been. Nor do I regard it as necessary in this case to expose what the individual or indicative sentences would have been, although I accept that there may be cases where doing so is helpful in exposing the reasoning involved in the particular case.

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: 13 December 2021

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