[2016] HCA 48
Category: Principal judgment
Parties: Facer (a pseudonym) (Applicant)
Crown (Respondent)
Representation: Counsel:
Source
Original judgment source is linked above.
Catchwords
[2016] HCA 48
Category: Principal judgment
Parties: Facer (a pseudonym) (Applicant)
Crown (Respondent)
Representation: Counsel:
Judgment (27 paragraphs)
[1]
Judgment
LEEMING JA: The applicant cannot be named, by reason of s 578A of the Crimes Act 1900 (NSW); "Facer" is a pseudonym. He pleaded guilty to six offences involving his granddaughter over a period of some 5 years, when she was between 9 and 14, and while he was between 52 and 57. There were three counts (counts 2, 3 and 4) of aggravated sexual intercourse involving digital penetration with a child under 10, contrary to s 66A(2) of the Crimes Act. The maximum penalty for these counts was life imprisonment, with a standard non-parole period of 15 years imprisonment. There was one count (count 5) of attempted sexual intercourse with a child under 10 contrary to s 66B, and two counts (counts 6 and 10) of aggravated sexual intercourse with a child aged 10-14 contrary to s 66C. The maximum penalty for count 5 was 25 years imprisonment. The maximum penalty for counts 6 and 10 was 20 years imprisonment. Neither s 66B nor s 66C had a standard non-parole period.
Additionally, there were five counts placed on a "Form 1" in respect of count 2, to which the applicant admitted his guilt and which were taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). One of these (count 1) was a count of aggravated indecent assault contrary to s 61M(2) when his granddaughter was aged 7. Three were counts of aggravated sexual intercourse with a child aged 10-14 contrary to s 66C(2) and the fifth was one count of aggravated sexual intercourse with a child aged 14-16 contrary to s 66C(4). Including count 1, the period of offending was 7 years.
The sentencing hearing commenced on 9 December 2016. The victim read from a victim statement in closed court. The applicant did not give evidence. A handwritten letter expressing his remorse and shame was tendered without objection, as were reports of two psychologists, one psychiatrist, a pre-sentence report, and a statement of agreed facts. There was a further short hearing on 16 December 2016, directed to the steps taken by the applicant to transfer his assets to his wife (from whom he was now separated, and with whom there were pending proceedings in the Family Court).
On 1 March 2017, the primary judge imposed an aggregate sentence of 21 years with a non-parole period of 15 years and 9 months, and specified a series of indicative sentences. The primary judge then said that
"All of the sentences I have announced have had the discount of 25% applied to them for the plea of guilty. The discount is reflected in the aggregate sentence which I have announced, as that aggregate sentence was determined by consideration of the indicative sentences to which the discount had been applied."
The applicant seeks leave to appeal against that sentence, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). He relies on two grounds. The first is that there was error in failing to find "special circumstances" justifying a variation in the statutory ratio between the term of the sentence and the non-parole period. The second is that the sentence was manifestly excessive.
[2]
Leave should be refused in respect of the first proposed ground
The first proposed ground is readily resolved. A finding of "special circumstances" for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act authorises the sentencing court to impose a non-parole period which is less than 75% of the total term of the sentence.
It was said in support of this ground that the facts that it is the first time the applicant has been in custody, that the applicant was 59 when sentenced, and that he will be 74 when first eligible for parole, warranted a finding of special circumstances. The primary judge rejected this. Her Honour said that "[t]he length of parole contemplated here will be appropriate to serve the purposes of parole". There was no error in proceeding on that basis. The sentence imposed by the primary judge permits the applicant, if granted parole, to more than 5 years of supervised parole.
The applicant submitted orally that "usually in these type of cases with this type of offender special circumstances are found and I struggled to find a case that was very similar to this, in fact I couldn't where special circumstances were not given in similar circumstances". For the purposes of the challenge to the failure to find special circumstances, the relevant similarity is with older offenders with limited criminal antecedents who are sentenced to a very long term of imprisonment. Of this there are ample examples. Focussing just on sentences for murder and manslaughter (which are readily accessible), see R v Boon [2019] NSWSC 813; R v RJB [2019] NSWSC 719 and R v Yavuz (No 6) [2019] NSWSC 95. As R A Hulme J said in R v Boon at [82], rejecting a submission that there should be a finding of special circumstances,
"I am satisfied that imposing a sentence with the usual proportions is appropriate in this case. The parole period allowed for by that means will allow more than sufficient time, I would think, to achieve the ends suggested by counsel. I have also borne in mind that the non-parole period of the sentence must appropriately reflect the minimum period that I consider the offender should be held in custody."
Davies J said in R v Yavuz (No 6) [2019] NSWSC 95 at [85]:
"The authorities are clear that the fact that it is a person's first time in custody is not, by itself, sufficient to amount to special circumstances. In the sentence to be imposed, I consider that the non-parole period to be imposed is the minimum time which the offender should serve. To the extent that matters of rehabilitation and re-integration into the community are to be considered, the period of time the offender will be on parole will be more than sufficient to deal with those matters."
I would not grant leave to rely on this ground.
[3]
Was the sentence manifestly excessive?
In contrast, the ground that the sentence is manifestly excessive does warrant a grant of leave, having regard to two matters. The first is the length of the aggregate sentence. On any view it is a very long sentence, especially when it is borne in mind that it incorporated a 25% reduction for the applicant's guilty pleas. The Crown accepted during the hearing that, according to sentencing statistics maintained by the Judicial Commission which had been provided to her Honour, this was the second highest sentence imposed in New South Wales following a guilty plea to offences contrary to s 66A(2) in the 7 years from January 2009 until December 2015.
The second matter is a peculiarity in the sentencing process. When the applicant was sentenced on 1 March 2017, her Honour imposed an aggregate sentence, and, in compliance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), indicated the sentence that would have been imposed for each offence.
As stated on 1 March 2017, those indicative sentences were as follows:
Count 2 (taking into account the Form 1 offences): a non-parole period of 11 years and 3 months with a total term of 15 years.
Count 3: a non-parole period of 6 years and 9 months, with a total term of 9 years.
Count 4: a non-parole period of 7½ years, with a total term of 10 years.
Count 5: a non-parole period of 9 years, with a total term of 12 years.
Count 6: a non-parole period of 7½ years, with a total term of 10 years.
Count 10: a non-parole period of 9 years, with a total term of 12 years.
However, in the course of revising the transcript at some later date, her Honour discovered an error. Her Honour recorded the error in an "Addendum" at the end of the transcript.
"ADDENDUM*
When the Court pronounced indicative sentences, the Court had always intended to pronounce those figures after the application of the 25% discount for the plea of guilty. This is reflected by the expression of this intention in the judgment itself.
When pronouncing the indicative sentences, the Court read from a table where the figures for the indicative sentences before the application of the discount were in one column and the figures after the application of the discount were in another column. For Counts 5, 6 and 10 only, the Court unintentionally had reversed the figures between the columns and had read out the unintended figures before the application of discount. These were not the figures relied upon in the determination of the aggregate sentence. The error involved a misreading only, but did not reflect the intention of the Court or what had been written as the indicative sentences, (which involved figures after the application of discount, albeit that the figures were mistakenly entered in the reverse order in the columns of the table).
The error was only ascertained upon receipt of the transcript. The transcript has been amended to reflect the indicative sentences for Counts 5, 6 and 10 as were written and intended. The transcript before the amendment reflected the unintended indicative sentence as:
Count 5: Non-parole period of 9 years with a total of 12 years;
Count 6: non-parole period of seven and half years with a total term of 10 years; and
Count 10: non-parole period of 9 years with a total term of 12 years.
The Court relied upon the amended figures for Counts 5, 6 and 10 as now reflected in the transcript (and as reflect the application of the 25% discount) in determining the aggregate sentence."
The transcript on the day was altered to what had been intended, rather than what had been said. To be clear, this was done transparently, with references to each amended portion made to "NOTE: See Addendum". As altered, the indicate sentences for counts 5, 6 and 10 were said to be:
Count 5: a non-parole period of 6 years and 9 months with a total term of 9 years.
Count 6: a non-parole period of 5 years and 7 months with a total term of 7 years and 6 months.
Count 10: a non-parole period of 6 years and 9 months with a total term of 9 years.
It is to be borne in mind that her Honour delivered oral reasons after reserving, quite probably in a break in another hearing, and that inevitably mistakes will occur in the sentencing process. However, the revised transcript is often not widely available, while the formal record of the sentence imposed is the entry in JusticeLink. The JusticeLink record for 1 March 2017 still records the unamended indicative sentences actually stated on the day. Because it was unamended, and because it is not known when the error was detected, it is neither necessary nor possible to express a view as to whether there would have been power to amend the JusticeLink record.
Ultimately, whether the sentence imposed was manifestly excessive turns on the actual aggregate sentence and non-parole period, rather than the indicative sentences. I see no reason to doubt that at all times her Honour intended to impose an aggregate sentence of 21 years with a non-parole period of 15 years and nine months. However, I would infer that it would have been unsettling, both for the Crown and the applicant, to learn by an addendum only provided when the revised transcript was obtained, that half of the indicative sentences which contributed to a very lengthy aggregate sentence had been inadvertently overstated by a total of no less than 8½ years.
In order to assess whether the sentence was manifestly excessive, it is necessary to elaborate upon the matters before the sentencing judge.
[4]
The statement of agreed facts
The sentencing hearing proceeded on the basis of a statement of agreed facts. In the interests of transparency, so as to identify with some precision the factual basis upon which the sentence was imposed, what follows is a close to verbatim summary of the agreed facts.
When aged around 7 years and 8 months, the victim went to live with the applicant and his wife pursuant to Family Court orders. The victim initially shared a bedroom with a young girl, "B", who was a foster child being cared for by the applicant and his wife.
[5]
First offence on Form 1 (regarding count 1)
On an occasion between 1 October 2007 and 4 February 2008, the victim had a friend D staying for a sleepover. The victim was asleep in her bedroom which she shared with the young girl B. B and D were also asleep in the same room.
During the night the applicant crept into the victim's bedroom and approached her bed. The applicant pulled the sheets back and began caressing the victim on her chest and stomach. The victim woke however pretended to remain asleep. The applicant then pulled up her nightie and rubbed her chest and stomach. He put his hand inside her underpants and rubbed her on the vagina. This was one of the aggravated indecent assaults on the Form 1. The victim did not understand why the applicant was doing this. After a few minutes, he stopped, pulled the victim's pants back up, covered her with the sheets and left the room.
The victim cried and then fell back asleep. The following morning, the applicant behaved as if nothing had happened. At the time of this offence, the victim was 7 years of age and the applicant was 50 years of age. After this incident the victim thought that this conduct was normal.
[6]
Count 2
On an occasion between 4 February 2009 and 1 January 2010, the applicant crept into the victim's bedroom during the night. The victim was awake when the applicant pulled back the bed covers, lifted the victim's nightie and pulled down her underpants. The applicant caressed the victim on her breasts with his hand, then rubbed her stomach. The applicant rubbed the victim on the outside of her vagina with his hand, then massaged over and around her clitoris with his fingers. The applicant inserted his finger into her vagina. He moved his finger in and out of her vagina for some time, while asking her "Does this feel good?" The applicant removed his finger, pulled the victim's pants up and re-covered her. The applicant then quietly walked out of the bedroom. At the time of this incident the victim was 9 years of age. The applicant was 52 years of age. This digital penetration was the aggravated sexual intercourse with a child under 10 years charged as count 2.
[7]
Count 3
On an occasion between 4 February 2009 and 31 December 2009 the applicant inserted his thumb into the victim's vagina. The victim described that the applicant had a large and wide thumb. This caused her pain. She screamed when he did this. The applicant said sorry as the victim was crying and he stopped. The victim described that she believed that she "lost her virginity" on that occasion. The victim was 9 years of age and the applicant was 52 years of age. This digital penetration was the aggravated sexual intercourse with a child under 10 years charged as count 3.
[8]
Count 4
In 2010 the applicant's wife went away to China for a holiday for two weeks. During that period the victim slept in the applicant's bed with him, at his request.
On an occasion between 26 January 2010 and 4 February 2010, whilst the applicant's wife was in China, the applicant was in his bed with the victim. He rubbed her vagina then inserted his fingers into her vagina. At the time of this incident the victim was 9 years of age and the applicant was 52 years. This was the aggravated sexual intercourse with a child aged under 10 which was charged as count 4.
[9]
Count 5
On another occasion in the same period when the applicant's wife was in China, the applicant took the victim by the hand and led the victim to his bedroom. The victim lay on her back on the applicant's bed, with her legs hanging down over the edge of the bed. The applicant removed the victim's underpants. The applicant massaged the victim's breasts, then rubbed the victim on the vagina with his hands. The applicant had an erection by this time. The applicant exposed his penis and stepped in closer to the victim, so that the head of his penis was rubbing against the victim's vagina. By these acts it was agreed that the applicant attempted to have penile/vaginal intercourse with the victim. The victim started to move back away from the applicant. The applicant said, "Are you sure you want to do this?" The victim said, "No." The victim rolled over on to her side and cried. The applicant then left the room. At the time of this incident the victim was 9 years of age and the applicant was 52 years of age. This was the attempted aggravated sexual intercourse with a child under 10 years charged as count 5.
[10]
Count 6
The victim turned 10 on 4 February 2010.
From 2010 onwards, the applicant on numerous occasions would beg the victim not to say anything to anyone. He said it would "turn our lives upside down", and that it would hurt his marriage. He said that her grandmother would be hurt. He also said, "You can't tell anyone, because we'd go to gaol."
On an occasion between 4 February 2011 and 31 December 2013, when the victim was aged either 11, 12 or 13, the applicant's wife went away for the weekend to visit her mother. The applicant took the victim by the hand and led her to his bedroom. The victim lay on her back on the bed, with her legs hanging down over the edge of the bed. The applicant removed her underpants, and rubbed the victim's vagina with his fingers. The applicant exposed his erect penis, and moved in to the victim so that the head of the penis was rubbing against the victim's vagina. The applicant inserted the head of his penis into the victim's vagina. He said "I wish I could push it in but I'm afraid you'll get pregnant." The applicant removed his penis. This was the aggravated sexual intercourse with a child between 10 and 14 years charged as count 6.
[11]
Second offence on Form 1 (regarding count 7)
On a further occasion between 4 February 2011 and 31 December 2013 the applicant crept into the victim's bedroom, and took up a kneeling position beside her bed. He pulled back the sheets, and removed her underwear. The applicant caressed the victim's breasts, and body, then rubbed the victim's vagina. The applicant licked the victim's vagina. The act of cunnilingus was the aggravated sexual intercourse with a child between 10 and 14 years charged as count 7 and taken into account on the Form 1. After a short time the victim told the applicant to stop which he did.
[12]
Third offence on Form 1 (regarding count 8)
On an occasion between 4 February 2013 and 31 December 2013 the applicant crept into the victim's bedroom and rubbed her chest and vagina with his hands, before inserting his finger into her vagina for a short period of time. At the time of this incident the victim was 13 and the applicant was 55 or 56 years of age. This was the aggravated sexual intercourse with a child between 10 and 14 years charged as count 8 and taken into account on a Form 1.
[13]
Fourth offence on Form 1 (regarding count 9)
On another occasion between 4 February 2013 and 31 December 2013 the applicant led the victim into his bedroom and asked her to face the bed. The applicant removed the victim's underpants and positioned her so that her body was bent forward at the waist and her hands were on the bed. The applicant stood behind the victim and inserted his penis into her anus slowly so as not to hurt her. He moved his penis in and out of the victim's anus. The victim cannot recall if the applicant ejaculated insider her on this occasion. The victim was 13 years and the applicant was 55 or 56 years of age. This penile/anal intercourse was the aggravated sexual intercourse with a child between 10 and 14 years charged as count 9 and taken into account on a Form 1.
[14]
Count 10
On an occasion between 4 February 2013 and 31 December 2013 the applicant climbed into the victim's bed and lay on his side with his back against the wall. The victim was lying on her side with her back against the applicant. The applicant slowly inserted his penis into her anus, thrusting in and out for several minutes until he ejaculated inside her anus. The applicant removed his penis, climbed out of the victim's bed and left her room. The victim got up and went to the toilet to clean the semen. This penile/anal intercourse was the aggravated sexual intercourse with a child between 10 and 14 years charged as count 10.
On occasions when the applicant performed sexual acts with the victim, he told her that he was doing so because she was pretty and because she would have boys chasing after her and that he wanted her to have experience so that boys would not take advantage of her.
The applicant told the victim not to tell anyone else what he was doing. He told her that if she told anyone, he would get into a lot of trouble and that he might even go to gaol. She promised not to "betray" him. He said that he did not know what her grandmother would do if she found out. The victim did not want to hurt her grandmother which is why she did not disclose these incidents.
During 2014, the frequency of the sexual contact decreased and when sexual incidents occurred, the duration of those incidents reduced from around 20 minutes to around 5 minutes. The victim later told police that sexual incidents occurred between her and the applicant so frequently that she lost count. On occasions when the sexual contact caused the victim pain accidentally and she would scream and the applicant apologised. She described, "it wasn't abusive in that way."
[15]
Fifth offence on Form 1 (regarding count 11)
The last incident occurred between 1 September 2014 and 30 November 2014. On that occasion, in the middle of the night, the applicant crept into the victim's bedroom and touched her breasts, rubbed her vagina then performed cunnilingus on her for around five minutes. The applicant then left the bedroom. The victim was 14 years of age and the applicant was 57 years of age. This was the aggravated sexual intercourse with child over 14 years charged as count 11 and taken into account on a Form 1.
The above incidents were not isolated but representative of a wider course of sexual conduct towards the victim.
In early May 2015, the victim told a relative (PT) that the applicant had been sexually abusing her since she was 7 years old. PT encouraged the victim to tell her grandmother, however initially she said she couldn't do that. On Wednesday 3 June 2015, with the support of PT, the victim informed her grandmother about the allegations.
On Thursday 4 June 2015, while the victim was at school, the applicant's wife said to him that "PT says you've been sexually abusing her." After a few moments, when the applicant had made no response, she said, "What I am not hearing from you, are you denying it?" The applicant replied, "Do you want me to leave?" The following day, the applicant's wife asked him to leave the house, which he did.
On 21 June 2015, the victim was at work. She broke down and was crying hysterically. She told her supervisor and a colleague that she had been sexually abused by her grandfather for seven years. They drove her to a police station, where the victim made a report to Police. The matter was referred to detectives at the Child Abuse Squad, attached to the Joint Investigation Response Team (JIRT) for investigation. On Thursday 2 July 2015, the victim attended the JIRT office, where she participated in a recorded interview disclosing the offending conduct.
On 14 July 2015, the applicant met with police by appointment. He was informed of his rights. He participated in a recorded interview where he made no comment to the allegations. On 21 April 2016, the applicant pleaded guilty in the Local Court and was committed for sentence.
[16]
The victim's statement
The victim described the escalating abuse from "groping to fingering to oral and sometimes anal". She said that the applicant told her he was teaching her what to expect so as to protect her "so that a boy wouldn't have his way with me in the back of a car". She described her humiliation and shame, at the time, and when talking to police and lawyers. She said that she was bullied at school when her peers learned what had happened, leading to a change in school. She spoke of the prescription drugs and the counsellors and psychiatrists she had seen. She spoke of being triggered, once by a police siren, another time by an undeleted photograph of her grandfather, which caused her to suffer crying fits. One instance of stress and flashbacks caused her hospitalisation. She said she had lost a lot of weight, going from size 14 to size 10. She described the breakdown of her relationship with her father, who had refused to come to court, with her mother, who was pregnant with her seventh child, and her inability to speak with her 15 year old brother, who was also the applicant's grandson. She told of the lies she had to tell her friends about her sexual experience. She concluded:
"I've been desensitised. I'd like to put it behind me and think of it as a memory. I want to stop telling - I want to stop lying to his mother. I was to focus forward. I want this process to end and when I learnt that [the applicant] pleaded guilty ... I was glad he didn't put me through the trial, and every day I count down the days to the sentencing. I'm relieved and I'm scared of what the outcome might be. I'm really hopeful that when this is finished I get to turn the page and move on with my new life."
[17]
The reasons of the primary judge
After reproducing the agreed facts, the sentencing judge stressed the seriousness of the offender's breach of trust and the vulnerability and emotional manipulation of the child in the context of the home they both lived in. Her Honour rejected the Crown's submission that the harm to the victim was an aggravating feature. This was not from any rejection of the force of the victim's statement, which evidently moved her Honour, as it would most people. However, her Honour considered that the harm described was typical of that seen in these types of cases, relying on R v Gavel [2014] NSWCCA 56 at [111], and accordingly was not aggravating. Her Honour found that each count was within, or "slightly above" or "slightly below" mid range, save that count 10 (the penile/anal intercourse) was "above mid range". (It is perhaps not clear that her Honour did so explicitly in the case of count 3 but it was not said that anything turned on this.)
The Crown submissions to the primary judge extensively addressed R v Gavel. Paragraphs 94-111, being slightly more than 2 pages of a 15 page document, were directed to summarising and contrasting that case, which was the only decision treated in that fashion. The Crown submitted that the totality of offending in the present case was far more objectively serious than in Gavel, despite the absence of child abuse material, but because the acts of sexual intercourse were of a wide range, including penile penetration, over a seven year period and the age of the offender who was the victim's grandfather (as opposed to her babysitter).
The sentencing judge noted that the applicant had experienced domestic violence in his youth, while also noting that the defence "does not place much significance on this aspect". Her Honour stressed the need for general deterrence, noting that the offending occurred behind closed bedroom doors, involving a child, over a period of seven years, with a gross breach of trust, manipulative conduct and circumstances of vulnerability.
The applicant's subjective and mitigating features, as noted by the primary judge, may be summarised as follows:
1. The applicant's childhood was marred by domestic violence perpetrated by his father.
2. He had been married for 26 years to the victim's grandmother, although that marriage was over as a result of these offences.
3. He had three children, two from previous relationships, his daughter tragically died young, and the older son lived in Queensland. His younger son is the victim's father.
4. The applicant had a career in metallurgy and secured employment as a laboratory technician. He had no relevant criminal history.
5. The applicant acknowledged he was most likely under the influence of alcohol at the time of the offences.
6. Her Honour noted that although there was an impression from some of the reports that the applicant lacked insight, she found that there was some developing insight. One psychiatrist noted that it was more likely than not that the applicant had "cognitive distortions" about the victim at the time of offending that facilitated the offences and that he had recently being diagnosed as suffering from an adjustment disorder with depressed mood.
7. The pre-sentence report found a low risk of reoffending, with criminogenic needs identified as alcohol or drug problems and sex offending. One psychiatrist concluded there were positive prospects of rehabilitation as the applicant was reasonably intelligent, had accepted his guilt and acknowledged his need for treatment.
8. The applicant had experienced some sexual abuse as a child. He expressed remorse to the report writers, tendered a letter of apology, and accepted his guilt by pleading guilty in the Local Court.
9. The sentencing judge accepted that the proceeds of sale being paid to the benefit of the applicant's wife to also provide for the victim was not so much an aspect of remorse but more relevant to the concept of ameliorative conduct.
10. The sentencing judge found there were "some prospects" of rehabilitation, limited to the extent of lack of insight but noted the applicant's willingness to undergo treatment.
The primary judge stated that the nature of the offending conduct was "such as to cry out for a great emphasis to be placed on the sentencing purpose of general deterrence". Her Honour declined to find special circumstances, as noted above. Her Honour referred to the sentencing statistics with which she had been provided, and accurately commented that they were drawn from a small field. She said:
"None of them have given rise to circumstances as are combined here. I nonetheless have had regard to the statistics, limited as they are in such matters."
Her Honour then referred to the principles of totality and the need to avoid a "crushing" sentence, and the statutory guideposts. Her Honour then imposed the sentences from which leave to appeal is sought.
[18]
Submissions in this Court
The applicant advanced at the outset five reasons for concluding that the sentence was manifestly excessive:
1. "There was a plea of guilty in the Local Court;
2. the child victim did not have to give evidence in court or be cross-examined;
3. the applicant has signed over most of his assets ultimately for the benefit of the victim;
4. there were special circumstances, in that the applicant is old and has never been in custody before;
5. A sentence of this length is akin to many sentences for homicide, and should be less."
I do not accept parts of this. The first reason does not assist, because the sentencing judge expressly discounted the sentence by 25% for the pleas, which were regarded as early. The second reason is a consequence of the first, and is an important aspect of the so-called "utilitarian" benefit of the plea. The fourth is not "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), for the reasons already given in response to the first ground.
The third and fifth points require elaboration.
The primary judge proceeded on the basis that the applicant had renounced his interest in the proceeds of sale of various properties which had been in his name, or the name of him and his wife. At the time of sentence, there had not been an order in the Family Court, and the proceeds of sale had been transferred to the applicant's wife. The total amount was some $2,027,777.60, with the applicant retaining only the balance of his superannuation (being $290,000). The sentencing judge accepted the Crown's submission that "caution needs to be applied to the expressions of remorse" and was conscious that the outcome of the transfer of assets to the applicant's mother was "subject to scrutiny in any Family Court disposition of the matter".
The fifth point raises an issue which was touched on by this Court's decision in Gibbons (a pseudonym) v R [2019] NSWCCA 150. That appeal was reserved when the present appeal was heard. Judgment was delivered on 12 July 2019. I have considered whether it would be appropriate to invite further submissions on that decision. However, I have concluded that that course is not necessary, because this appeal can be resolved without expressing a view on this issue.
The applicant submitted that the sole source of aggravation to which counts 2, 3, 4, 6 and 10 referred was that the victim was under the authority of the applicant. The applicant accepted that the incidents charged were not isolated but rather were representative of a wider course of conduct, the frequency of which was not specified. It was said that the disparity of age and the fact that the child was convinced not to disclose the applicant's offending were usual in this sort of case. Even so, it was said to be manifestly excessive.
The Crown's submissions, like those of the applicant, were brief. No criticism is implied. The nature of a ground of manifest excess is that no patent error can be pointed to, but it is to be inferred that the sentencing discretion has miscarried, because the result is too high. As had been the case before the sentencing judge the Crown emphasised that Gavel was much less objectively serious than the present case.
[19]
Consideration
Merely as a matter of initial impression, my immediate reaction to this sentence was that it was too high, despite the seriousness of the applicant's offending.
The aggregated statistics tend to confirm my initial impression. The very limited statistics which were provided to her Honour were based on ten offenders who pleaded guilty to multiple offences contrary to s 66A(2) and who had no prior convictions. Seven of the ten were sentenced to terms of between 10-15 years. One was sentenced to 8 years' imprisonment, one to 18 years' imprisonment, and one to more than 20 years' imprisonment. (In each case, the recorded sentences were rounded down to the nearest year.) Of the ten offenders, three were aged over 50.
Very little can be drawn from such a limited sample size, especially in cases involving the sexual assault of children, because so much turns on the particular facts of the case. However, without understating the seriousness of the offending, in terms of the individual offences, their representative nature, the years during which they occurred and escalated, or the vulnerability of a young child who had been placed into his care following violence in her immediate family, there were some ameliorating features. The findings of objective seriousness made by the sentencing judge were in the middle of the range, and the subjective case had some positive features, including the transfer of the bulk of the applicant's assets, a measure of remorse, the prospects of rehabilitation and a low likelihood of reoffending. I am conscious that it is always possible to conceive of an even worse instance of an offence, and the limitations of such reasoning; cf The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48. But the melancholy truth is that it would be surprising if the applicant's offending warranted a sentence as severe as the worst recorded in the statistics.
It is necessary to consider the facts which underlie the statistics. I have focussed on recent cases where the maximum penalties correspond to those applicable to the applicant's offending. I have been assisted by the fact that some were collected in this Court's recent judgment of Gibbons (a pseudonym) v R [2019] NSWCCA 150. I have sought to summarise the five cases which are most closely comparable to the offending in the present appeal.
[20]
BR v R [2015] NSWCCA 255
The applicant in BR v R [2015] NSWCCA 255 had pleaded guilty to a total of 41 offences, 25 of which were dealt with substantively, with the remaining 16 placed on a Form 1. The five victims, aged between 5 and 12 years, had been sexually assaulted over a five month period. Seven of the counts were sexual intercourse with a child, and two were of sexual intercourse with a child under the age of 10 under authority, carrying a maximum penalty of life imprisonment. Some of the acts of intercourse had been recorded, and there were six counts of using a child under the age of 14 for the production of child abuse material, and 6 counts of possession of child abuse material.
The applicant was aged 52 years at the time of offending. His only previous offending was an assault occasioning actual bodily harm. At least at one stage, he had blamed the victims for the commission of the offences.
A 25% discount was applied to the starting point of all indicative offences. An aggregate sentence of imprisonment for 23 years was imposed at first instance, with a non-parole period of 17 years. This Court rejected the proposition that the aggregate sentence was manifestly excessive.
The task of comparison is invidious, but I would conclude that the offending in BR was much worse than the present case. There were five victims, not one. The production and possession of child abuse material adds a different dimension. The subjective case was significantly worse. Yet the applicant's sentence was only marginally shorter than that imposed on BR.
[21]
Bravo v R [2015] NSWCCA 302
In Bravo v R [2015] NSWCCA 302, the applicant sexually assaulted his stepdaughter over a period of two years, when she was 9 to 11 years of age. He was found guilty of 11 offences at the conclusion of a trial by jury, some of which featured sexual intercourse, including penile/anal intercourse with ejaculation. Some of the offences carried a maximum penalty of life imprisonment. He was sentenced for five counts of aggravated indecent assault, and six counts of aggravated sexual intercourse with a child aged under 10. The victim had come to regard the offences as "almost normal".
The applicant refused to accept his guilt, and had no relevant criminal history. An aggregate head sentence of imprisonment for 22 years with a non-parole period of 16 years was imposed. Error was conceded on appeal, but this Court concluded that no lesser sentence was warranted in law.
Mr Bravo's sentence was only one year more than the sentence imposed on the applicant in this appeal, notwithstanding the broadly comparable objective criminality, albeit over a shorter period of time, the applicant's significantly better subjective case, and, importantly, the fact that the applicant had pleaded guilty and had obtained the benefit of a 25% discount.
[22]
Franklin v R [2016] NSWCCA 319
In Franklin v R [2016] NSWCCA 319, the applicant sexually assaulted his niece over a period of eight years, during which time she was aged between 7 and 13 years, including penile/vaginal sexual intercourse with ejaculation. Some of the offences were filmed by him. The applicant pleaded guilty to 18 counts, comprising of 9 counts of indecent assault upon a child under 16 years, 1 count of aggravated sexual intercourse with a child under 10 years, 6 counts of aggravated sexual intercourse with a child above 10 years and under 14 years, 1 count of using a child for pornographic purposes, and 1 count of sexual intercourse with a child under 10 years. One of the offences carried a maximum sentence of life imprisonment, one a maximum of 25 years' imprisonment, and six carried a maximum of 20 years' imprisonment. There were also three offences on a Form 1: an offence of possessing child abuse material and two offences of aggravated filming of a person in private without consent.
The applicant pleaded guilty to all offences in the Local Court, and received a 25% discount as a result. He possessed a minor criminal record. At first he had seemed to blame the victim for what occurred, but had come to accept that it was entirely his fault, and expressed his hatred for himself.
At first instance, an aggregate head sentence of imprisonment for 27 years with an aggregate non-parole period of 18 years was imposed. On resentence, this Court imposed a reduced aggregate head sentence of imprisonment for 24 years, but still with a non-parole period of 18 years.
The reduction for a guilty plea enables the actual sentences between Mr Franklin and this case to be compared directly. There was a single victim, but many more counts, and the offending took place over a slightly longer period of time. The filming of the sexual intercourse adds another dimension to the depravity which is absent from the present case. Mr Franklin's subjective case was much worse than the applicant's. The sentence of 24 years with a non-parole period of 18 years is lengthier than that imposed on the applicant of 21 years with a non-parole period of 15 years and 9 months, but not markedly so.
[23]
Davies v R [2019] NSWCCA 45
In Davies v R [2019] NSWCCA 45, Mr Davies pleaded guilty to no fewer than 27 counts of sexual offences involving eight girls and one boy over a period of some 12 years. He also pleaded guilty to possession of a range of child abuse material, including photographic images of four of the victims. A further 19 offences were taken into account on a Form 1. Nine of the offences for which he was sentenced, and seven for which account was taken on the Form 1, related to a single girl over a four year period. The most serious offending was sexual intercourse with a girl aged 12 or 13, including cunnilingus, digital penetration of her vagina and having her perform fellatio upon him until ejaculation. The guilty plea was entered late, warranting an overall discount of 12½%. The subjective case was described as "not strong".
An aggregate sentence of 24 years imprisonment with a non-parole period of 18 years was imposed. The comparison with the applicant's sentence needs to bear in mind that Mr Davies received only a discount of 12.5% for his late pleas, while the applicant's sentence incorporated a discount of 25%.
It is clear to me that having regard to a number of aspects - length of time, number of victims, the production of child abuse material and his subjective case - it is difficult to reconcile the sentence imposed on the applicant with that imposed on Mr Davies.
[24]
Gibbons (a pseudonym) v R [2019] NSWCCA 150
The applicant in Gibbons (a pseudonym) v R [2019] NSWCCA 150 was found guilty after trial of two counts of aggravated sexual intercourse with his son then aged four. The first was penile/oral intercourse; the second was penile/anal intercourse. The first was "well above the mid-range of objective seriousness", the second was "within the most serious category of offending against children, near the very top of the range". The applicant had previously been convicted of five counts of indecent assault against three of his nieces, when aged between four and 11. He had also been found guilty of five counts of aggravated assault and indecency upon a 15 year old visually impaired girl who was living in the same household.
Mr Gibbons was sentenced to an aggregate sentence of 30 years with a non-parole period of 22½ years. An appeal against sentence including on the ground of manifest excess, was dismissed by a majority of this Court. In dissent, Button J would have imposed an aggregate sentence of 22 years with a non-parole period of 16 years and 6 months.
The sentence imposed in Gibbons following trial was significantly longer than the applicant's sentence following his pleas (30 as opposed to 21 years). There was a single victim, and only two offences. However, the victim was much younger, and Mr Gibbons had a long history of offending against children.
[25]
Consideration
I find it impossible to reconcile the sentence imposed on the applicant with the sentences imposed in the five decisions referred to above. It is true that the offending is much worse than that in Gavel v R, but the sentence imposed in that case was of 14 years with a non-parole period of 9½ years. Gavel does not stand in the way of a conclusion that the sentence imposed was manifestly excessive.
I summarise what may be derived from the most closely comparable instances of sentencing which are summarised above.
First, while I bear in mind that the charged acts were representative of a pattern, none of those cases has the ameliorative features which are presented in the applicant's subjective case.
Secondly, I regard the offending in Bravo as significantly worse, yet the undiscounted starting point of the applicant's sentence was six years longer than that imposed in Bravo after a trial.
Thirdly, I also regard the offending in Davies as significantly worse, although it must be accepted that Mr Davies was not charged with the most serious offences as those to which the applicant has pleaded guilty. But there were nine child victims over a period of 12 years, four of whom were photographed, and a subjective case markedly worse than the applicant. This leads me to conclude that the sentence imposed on Mr Davies supports the conclusion that the applicant's sentence is too heavy.
Fourthly, the broadly comparable sentences imposed in BR and Franklin for offending which is markedly worse likewise confirms the conclusion that the applicant's sentence is excessive.
Finally, the exceptionally heavy sentence imposed in Gibbon does not undercut the force of the foregoing, bearing in mind that it was imposed after trial, the findings of objective seriousness and the offender's extensive record of sexually assaulting children in that appeal.
For those reasons, I propose granting leave to appeal, confined to ground 2 of the notice of appeal, allowing the appeal, quashing the sentence imposed on 1 March 2017, and resentencing.
[26]
Resentence
I would not interfere with any of the assessments of objective seriousness given by the primary judge to the offences. However, this Court when resentencing some 2½ years later must take into account additional evidence, which was provided on oath and not sought to be impugned by the Crown.
First, there is now sworn evidence of remorse. The applicant's affidavit is far from formalistic. It describes in some detail the steps he has taken to comprehend the enormity of his offending. I am comfortably satisfied the remorse is genuine. He was not required for cross-examination.
Secondly, there has now been an actual transfer, pursuant to consent orders made by the Family Court on 12 December 2018, of assets to his former wife. The uncertainty to which the primary judge referred concerning the Family Court no longer exists.
Thirdly, there is evidence both of willingness to undertake rehabilitation programmes in custody, and an inability to do so until closer to the expiry of his term.
The applicant's offending calls for an extremely severe custodial sentence. However, he is unlikely to reoffend. He is remorseful, and has taken the unusual step of transferring most of his worldly wealth to his ex-wife, with the intention that it benefit the victim of his crimes. That is not to diminish the damage done to his granddaughter, or to suggest that money can restore her lost innocence. But it is a matter to which regard may appropriately be had in the synthesis of factors bearing upon the sentence.
General deterrence must play a large role in a case such as this. General deterrence is reflected in a sentence which will expire when the applicant is in his mid 70s, and which will not permit him to apply for parole until he has turned 70.
An aggregate sentence is appropriate. I would impose an aggregate sentence of 16½ years imprisonment. I would not find special circumstances, so that the non-parole period would be 12 years and 4 months (applying some rounding). The sentence should be backdated to 14 July 2015, which is when he was taken into custody. The sentence will expire on 13 January 2032, when the applicant is about 74½. The earliest date on which the applicant will be eligible for release on parole will be 13 November 2027. In accordance with s 53A(2) of the Crimes Sentencing Procedure) Act I indicate the following sentences (each of which incorporates a discount of 25% for the plea):
Count 2, taking into account the Form 1 offences: 12 years with a non-parole period of 9 years.
Count 3: 6 years with a non-parole period of 4½ years.
Count 4: 6 years and 9 months with a non-parole period of 5 years.
Count 5: 7½ years with a non-parole period of 5½ years.
Count 6: 9 years with a non-parole period of 6 years and 9 months.
Count 10: 12 years with a non-parole period of 9 years.
DAVIES J: I agree with Leeming JA.
BUTTON J: I agree with Leeming JA.
[27]
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Decision last updated: 09 August 2019