FB v R

Judgment 1LEEMING JA: I agree with Adams J. 2ADAMS J: Introduction 3On 23 July 2010 the appellant was convicted following a trial by judge alone of the offence of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW) for which a maximum penalty is prescribed of 20 years imprisonment and a standard non-parole period of 10 years applies. The particulars of the charge allege that, between 16 August 2006 and 31 August 2006 the appellant had sexual intercourse with SE without her consent and knowing she was not consenting in circumstances of aggravation, namely at the time SE was 14 years of age and was under his authority as SE's teacher and the headmaster of the school she was attending. The primary judge sentenced the appellant to imprisonment for six years and six months with a non-parole period of four years to commence on 9 February 2010. (For convenience I refer to this as the earlier offence.) 4At the time of this sentence, the appellant was already serving a sentence imposed by another judge on 20 November 2009 for five offences committed between 10 and 14 December 2007 to which the appellant had pleaded guilty, involving sexual intercourse with a 16 year old girl who was under his special care in that he was the principal of the school the victim attended (the "later offences"). These occurred some 16 months after the earlier offence but they had been earlier disclosed to the authorities and the consequent proceedings were concluded before those relating to SE. The first of the later offences involved an act of cunnilingus and the four others involved penile/vaginal intercourse with the same victim. In respect of these offences the appellant was sentenced to a total effective term of 3 years and 9 months imprisonment commencing on 9 May 2008 with a non-parole period of 2 years and 3 months. 5The sentence imposed for the earlier offence commenced on 9 February 2010 and was therefore partially concurrent with the non-parole period imposed in respect of the later offences by 6 months. 6The Director of Public Prosecutions appealed against the sentences for the later offences on the grounds of manifest inadequacy. This Court upheld the appeal and substituted a sentence of 10 years imprisonment with a non-parole period of 6 years commencing 9 August 2009, six months earlier: FB v R; R v FB [2011] NSWCCA 217. Accordingly, this Court allowed a greater degree of concurrency than had the primary judge with the previous sentence being served by the appellant. 7The appellant sought a review under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW). Schmidt J referred this matter to this Court "to determine whether the Muldrock error affected the sentence imposed on the applicant as the result of the Crown appeal". The error is, of course, that identified in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, concerning the correct interpretation and application of Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) providing for standard non-parole periods, in which the High Court of Australia held that the decision of this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 erred in concluding that s 54B(2) was framed in mandatory terms, requiring the court, "when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the midrange of objective seriousness": ibid at [25]. For the purposes of the appeal, the Crown accepts that the Court of Criminal Appeal applied sentencing principles contrary to Muldrock and, accordingly, its judgment cannot stand. It is submitted, however, that no lesser sentence is warranted under s 6(3) of the Criminal Appeal Act and, the sentence imposed in the District Court being manifestly inadequate, this Court ought not to vary the sentence now under appeal. The nature of the present appeal 8The appellant and respondent contended for significantly different approaches which, each argued, was appropriate where the decision being reconsidered is that of this Court, having allowed a Crown appeal, increased the appellant's sentence. Since this issue was already under consideration by this Court, judgment being reserved, the Court ordered, with consent of the parties, that the disposition of this appeal would await that decision, giving the parties the opportunity to make written submissions when that judgment was delivered. This has now occurred: Louizos v R [2014] NSWCCA 242. The Court, by majority (Leeming JA, R A Hulme J agreeing, Fullerton J dissenting) held, in substance, that the new process created by ss 78 and 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) is not a mere rehearing of the Crown appeal as though this Court stood in the shoes of the previous Court of Criminal Appeal; rather, it is "a 'new appeal' by the offender against the sentenced imposed" by that court: ibid at [37]. As Leeming JA explained, the appellant is taken to have appealed under s 51C of the Criminal Appeal Act 1912 (NSW) against that sentence; leave is not required; and he is entitled to rely on grounds going beyond the matters relied on in the reference (here, the Muldrock ground), all of which are to be assessed on their merits as if the appeal were a conventional one. Fullerton J dissented from this approach for reasons which, if I may say so with respect, are persuasive to my mind. Indeed, the appellant in the present case contends that Louizos is wrongly decided and that the approach thought right by her Honour should be that which this Court should take. Of course, I mean no disrespect to Fullerton J but, in my view, this matter having been so recently decided, albeit by a majority, in my view the judgment of the majority should be followed until such time as a court of five judges holds it to be in error. Accordingly, I do not intend to rehearse the arguments relied on by the appellant in submitting that this Court should follow Fullerton J. They must be rejected. 9It is unnecessary to revisit the Muldrock issue. The question is whether, error being conceded, a lesser sentence is warranted. The facts 10There was no dispute in the earlier proceedings as to the primary judge's findings. His Honour said - "In August 2006 the complainant was having difficulties in her relationship with her family and particularly her mother. As a result of these difficulties her parents consulted the prisoner who was I say the school principal at the time. The prisoner suggested that the complainant spend some time with him and his family as a time out. Once again in my view at this stage there was much more than altruism in that offer by the prisoner. In my opinion that supports the fact that he was taking steps to spend as much time as he could with the complainant, probably with a sexual undertone as well. The complainant spent some two weeks with the accused and his family between 16 and 31 August 2006. On 19 August 2006 the prisoner took the complainant flying, out of Coffs Harbour and also purchased a gift which was for the complainant to give to her sister in relation to the latter's birthday. In my opinion this was also conduct by the prisoner in which he was attempting to ingratiate himself with the complainant by firstly impressing her as I infer from taking her flying and next providing money, not huge amounts, for the purchase of gifts. In the period leading up to the sexual assault the prisoner attempted close physical contact with the complainant by hugging her when they were watching television. Immediately preceding the offence he gave her two tablets which he represented were Panadol and which had the effect of causing her to go to sleep. When she awoke she found herself in her pyjamas and the prisoner on top of her. It was her evidence which I accepted in the trial beyond reasonable doubt and do for the purpose of sentencing, that his penis was inside her and she was screaming out for him to stop. She observed that he had his shirt on and the complainant thought he had some pants around his ankles. She believed that he was not wearing a condom during this process. It was her evidence that he held her down by her arms, but otherwise no further force was used by him. The complainant remained at the house after these events for a period of two to three days during which period the prisoner attempted no further sexual contact with her." Subjective features 11These, also unchallenged in the present appeal, are taken from the previous judgment (at [140]-[147]). The appellant was dealt with on the basis that the offence was his major criminal offence, the offences for which he was serving his sentence at the time having occurred in the following year. The appellant's long standing symptoms of a "severe depressive illness" did not contribute to the commission of the offence against SE, amongst other reasons, because his psychiatrist, Dr Watson-Munro, was unable to say whether the appellant had been suffering any psychological symptoms at the time. Nevertheless, he did have a long standing depressive illness of a severe nature which was, at the time of sentence, still affecting him. Dr Watson-Munro, who expressed the opinion that "the prisoner is clearly a paedophile", thought he needed more intensive treatment than he had received at the time of the sentence hearing, in this respect the primary judge noting that there were programs which might be of considerable assistance in his rehabilitation. Dr Watson-Munro was, as the Court described it, "wary of expressing a definitive opinion on the risk of recidivism" but, if he had a "long commitment to treatment", the risk of recidivism was "moderate". As the Court observed, "the sentencing judge accepted this proposition, namely that the need for post-release treatment and its prospects of decreasing the risk of recidivism, required a lengthy non-parole period enabling supervision." Of course, it also meant that the risk of reoffending was a live and significant issue. 12The following discussion is usefully set out in full - "[145] There were two matters, however, which the sentencing judge thought should particularly be taken into account as mitigating factors. These were the fact of extra curial punishment and, due to the nature of the offence, the harshness of the incidents of imprisonment. As to the first, the sentencing judge took into account that, prior to the commission of the offence, the respondent had been a highly regarded professional teacher and the principal of a country school. He had been a well-educated person apparently living a happy family life. His Honour said (Remarks on Sentence, 20):- It is self-evident that his fall from grace, by reason of these serious criminal matters, has been dramatic, and no doubt traumatic for him and also for his family. It has resulted in his estrangement from some of the members of his family and from the loss of any future career in teaching. I interpolate to say it may well have a far broader impact, that it would prohibit him from any career which may well bring him into contact with young children... His counsel has submitted that he practically is unemployable. Whether that description overstates the position or not might be debated. However, it is certainly clear that his professional life, as he knew it, after his release from custody, is not open to him and never will be. [146] As to the second matter, the sentencing judge accepted the evidence of Dr Watson-Munro that the respondent "is a vulnerable person in the prison context and is likely to be the subject of adverse attention by other prisoners". It appears the respondent told his psychiatrist that he had been assaulted in prison, "leading to broken bones". Furthermore, he had been subsequently been assaulted by others "throwing fruit at him". He had been on full protection since his incarceration "and that meaning he has been locked in his cell for between 18 and 23 hours a day". His Honour indicated, however, that there was no direct evidence from the respondent of this fact, although he was prepared to accept the second-hand account of the respondent's position at the time when that information had been passed to his psychiatrist. [147] There were other general matters dealt with by his Honour. He noted, for example, that the respondent had completed a sex offenders' programme over 14 weeks at the Goulbourn Gaol. He noted that the respondent had expressed "profound remorse notwithstanding that he indicated he was not guilty". He noted the previous good character of the respondent. (In this regard, his Honour indicated that he proposed to treat this offence as the first serious offending of the respondent in point-of-time). On the issue of character, his Honour observed that good character or lack of previous conviction was not to be taken into account as a mitigating factor, if the court were satisfied that the factor concerned was of assistance to an offender in the commission of an offence. (This was clearly a reference to the provisions of section 21A(5) of the Crimes (Sentencing Procedure) Act 1999 which, it is accepted, applied to the subject offence and the respondent). In this regard, his Honour concluded, however, that the respondent's good character should be treated as "a neutral factor". That is to say, the sentencing judge took the view that the issue of good character was one which was to be regarded as neutral in the particular circumstances that related to his position in the school and his ability thereby to pursue his predilection for interfering with young girls." Discussion 13The criminal culpability of the appellant was considerable. The offence was committed with a significant degree of deliberation and premeditation as demonstrated by the fact that he had drugged her and waited until she was sleeping before having intercourse. He acted with callous indifference for the well-being of a young girl in his care, for whom he also had the additional responsibility of being the principal of the school in which she was a student. 14Although, of course, this was the appellant's first offence in point of chronology, it is clear from his subsequent offences that he represents a real risk to any young girls in respect of whom he has any responsibility and who come under his influence. It follows that, in his case, the personal deterrence aspect of punishment is of greater significance than if he had offended only once. 15The Court of Criminal Appeal said, in respect of two circumstances thought significant by the sentencing judge, namely hardship in prison and the factor of extra curial punishment - "[155] ... As to the first, the only evidence before the sentencing judge was the abusive behaviour experienced by the respondent in prison and his concern that this would or might continue after he had been sentenced. There was no evidence, for example, to suggest that there would be imposed on the respondent any specific custodial situation that would reveal hardship out of the ordinary... [156] As to extra curial punishment, it may be accepted that the respondent had lost altogether his career as a teacher by virtue of his commission of the offence. Once again, however, this consideration could not, in the circumstances, have possibly outweighed or effectively undermined the level of objective seriousness involved in the offence. The respondent must have known that his sexual pursuit of pupils in his care would sooner or later bring his professional career to an end." 16It is clear, from the appellant's subsequent criminal conduct, that whatever remorse he might have had after the commission of his offence, it did not affect his behaviour. The sentencing judge rightly regarded the appellant's prospects of rehabilitation with "guarded optimism, only if he continues with the treatment which he has been given". His Honour went on to express some scepticism of his long term prospect in this regard given the wealth of learning revealing the difficulty of either eradicating or controlling behaviour of the kind exhibited by the appellant. To this I would add the subsequent offending. Conclusion 17In my respectful view, the Court of Criminal Appeal was correct in concluding that the sentence imposed by the primary judge was manifestly inadequate. Considering the objective seriousness of the offence, together with the appellant's subjective features, bearing in mind as yardsticks, the standard non-parole period and (less so) the maximum term prescribed for the offence, I am not persuaded that any lesser sentence than that substituted by the Court of Criminal Appeal is warranted in law. Accordingly, I would dismiss the appeal. 18FULLERTON J: I agree with Adams J. 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: 01 December 2014