Franklin v R

Judgment 1HOEBEN CJ at CL: Offences and sentence The applicant pleaded guilty to a number of charges relating to sexual offences upon the same victim, a 14 year old girl. Each offence was committed in the company of the applicant's girlfriend (now wife). All of the offences occurred on an evening in September 2009 when the victim was staying overnight at their home and was under their care. 2The offences were: (i) Aggravated act of indecency towards a child under 16 years (with the circumstance of aggravation being in company and the relevant act being that whilst the co-offender was carrying out fellatio on the applicant, he asked the victim to touch his penis and lick his nipples) contrary to s61O(1) of the Crimes Act 1900 which carries a maximum penalty of 5 years imprisonment. (ii) Aggravated indecent assault (touching the victim's breasts with hands and mouth, the child being under 16 years of age) contrary to s61M(2) of the Crimes Act 1900 which carries a maximum penalty of 10 years imprisonment, with a standard non-parole period of 8 years. (iii) Aggravated sexual intercourse with a child between 14 and 16 years (cunnilingus with the circumstance of aggravation being in company) contrary to s66C(4) of the Crimes Act 1900 which carries a maximum penalty of 12 years imprisonment. (iv) Aggravated sexual intercourse with a child between 14 and 16 years (digital penetration with the circumstance of aggravation being in company) contrary to s66C(4) of the Crimes Act 1900, which carries a maximum penalty of 12 years imprisonment. There was a Form 1 attached to this matter which included a further count of aggravated sexual intercourse with a child between 14 and 16 years (inserting a vibrator into the victim's vagina) contrary to s66C(4) of the Crimes Act 1900 and two counts of aggravated indecent assault (touching the victim's breasts) contrary to s61M(3)(a) and (3)(c). 3Zahra DCJ imposed the following sentences: In relation to (i), a fixed term of imprisonment for 18 months to date from 28 July 2011 and to expire on 27 January 2013. In relation to (ii), imprisonment with a non-parole period of 2 years to date from 28 October 2011 and to expire on 27 October 2013, with a balance of term of 2 years to expire 27 October 2015. In relation to (iii), imprisonment with a non-parole period of 3 years to date from 28 April 2012 and to expire on 27 April 2015, with a balance of term of 2 years to expire 27 April 2017. In relation to (iv), imprisonment with a non-parole period of 4 years to date from 28 January 2013 and to expire on 27 January 2017, with a balance of term of 3 years to expire 27 January 2020. 4The total overall effective sentence was imprisonment for 8 ½ years with a non-parole period of 5 ½ years and a balance of term of 3 years. His girlfriend, the co-offender, was sentenced at the same time. She received an overall effective sentence of imprisonment for 7 ½ years with a non-parole period of 4 ½ years and a balance of term of 3 years. 5The co-offender sought leave to appeal against her sentences on the basis that his Honour erred by imposing cumulative sentences in relation to each offence, with the consequence that the overall sentence imposed was manifestly excessive. Her appeal against sentence was dismissed by the Court of Criminal Appeal on 30 November 2012 (LG v R [2012] NSWCCA 249 (McClellan CJ at CL with whom Price J and Barr AJ agreed)). 6The applicant seeks leave to appeal against the sentences imposed on him on the following grounds: (1) The extent of the accumulation of the sentences was excessive. (2) His Honour failed to adequately take into account the principle of totality; and (3) The total effective sentence imposed is excessive in all the circumstances. Factual Background 7The victim, MC, was aged 14 at the time of the offences. The applicant and his co-offender had been friends with the victim's parents for 3 years. They shared a common interest in a youth organisation known as the "Air League", which was concerned with civil aviation. At the time of the offences in September 2009, the applicant was a senior member of the Air League and the victim's father was his second in command. 8The victim went to the home of the applicant and the co-offender on two occasions. The first occasion occurred some time before September 2009. The applicant bought and provided alcohol to the victim while the co-offender was at the movies. At some stage during the evening, the applicant and the victim went for a walk. While walking, the applicant had a conversation with the victim in relation to sexual matters, including asking the victim if she "touched herself". When the victim said that she did not, the applicant asked the victim "why not?". The applicant told the victim that a boy that she was interested in liked girls who were "good with their hands". Further, he spoke to the victim about his desire to be her "first kiss" and told her that he was prepared to give her a "lesson" on sex if she wanted it. 9Some time later, the co-offender returned. They showed the victim pictures of an adult dating website and a picture of each of them naked. 10A few weeks after the first visit, the victim attended again at the applicant's home. The victim went with her older sister, who also spent the night there. The applicant again took the victim for a walk. He reminded her of his offer to give her a "lesson" on sex and said that "we always do this" and that the victim's sister had done it and she was fine with it. 11When they returned home, the applicant went outside for a cigarette and the victim joined him. The applicant again applied pressure to the victim, asking her if he could be her first kiss. He touched the victim on the breasts (Form 1 matter: indecent assault of child under 16 years). 12The victim went back inside and had a shower. She was told to meet the female co-offender in the bedroom. The victim, who was terrified at this point, walked into the bedroom where she saw the female co-offender in bed. The applicant then entered the bedroom, took off his clothes and also got into the bed. 13The applicant removed the victim's top and started to touch her breasts. The co-offender also touched the victim's breasts with her hands. Both offenders began to touch the victim's breasts with their mouths. These acts were the subject of an indecent assault of a child under 16 years charge - offence (ii). 14The applicant pulled down the victim's pants and inserted his finger into her vagina. This continued for a short period of time. This act was the subject of an aggravated sexual intercourse with child between 14 and 16 years charge - offence (iv). 15The offenders then produced a silver bullet style vibrator which the applicant inserted into the victim's vagina. This act was the subject of an aggravated sexual intercourse with child between 14 and 16 years charge, - a Form 1 matter. 16The applicant then performed oral sex on the victim during which time the female co-offender was touching the victim's breasts. The act of cunnilingus was the subject of an aggravated sexual intercourse with child between 14 and 16 years charge - offence (iii). 17The applicant then suggested that the co-offender perform oral sex on him which she did. As that occurred the applicant asked the victim to touch his penis and lick his nipples. The victim did not comply. These acts formed the basis of the commit act of indecency towards a child under 16 years charge - offence (i). 18While the female co-offender was performing oral sex on the applicant, the applicant touched the victim's breasts. The touching of the breasts was the subject of an aggravated indecent assault charge - a Form 1 matter. 19The sexual encounter ended when the applicant ejaculated. The victim then got dressed, left the room and went to sleep in the lounge-room. The next day the offenders drove her home and were invited to stay with the victim's parents which they did. 20The victim disclosed what had occurred to her older sister in July 2010. The applicant and his co-offender were arrested on 23 July 2010. Sentence proceedings 21The primary judge assessed the objective gravity of the offending. He noted that general deterrence should be manifest when setting a sentence for child sexual assault, particularly in relation to offenders who were in a position of trust to the victim. He noted that in recent times there had been a pattern of increasing sentences in child sexual assault cases, reflecting a greater understanding about the long term effects of child sexual abuse. 22His Honour had regard to R v AJP [2004] NSWCCA 434; 150 A Crim R 575 where the Court of Criminal Appeal set out a number of factors which touched upon the assessment of the objective gravity of offending for the more serious offence under s66A of the Crimes Act. His Honour considered that those factors had application to this case. The first matter which his Honour took into account was "the nature of the sexual assault". In that regard, his Honour referred to Ibbs v R [1987] HCA 46; 163 CLR 447 at 452. There the Court said: "The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined." 23By reference to that observation, his Honour noted that the acts of sexual intercourse in this case involved penetration of the victim's vagina, including digital penetration and penetration with an object. They also included an act of cunnilingus upon the victim. There were a number of acts amounting to indecent assault, including touching of the victim's breasts. The offenders engaged in acts of indecency in the presence of the victim. 24His Honour accepted that, while the offenders committed a number of separate acts upon the victim, they were part of one sequence within a relatively short timeframe. The primary judge did, however, note that the victim said that at the time she was terrified. His Honour found that this would have been a product of the position of power that both the offenders had over the victim as adults and the victim's vulnerability. 25His Honour found that the offences involved an element of planning in that both offenders were involved in conduct preparatory to the assaults upon the victim. The conduct included attempts to persuade the victim to engage in sexual acts, the showing of explicit photographs and the exposure of the victim to an adult website. 26His Honour found that the incident was an isolated one. While there were a number of separate acts upon the victim, the assaults were not part of a course of criminal conduct upon her. The acts all occurred on one night. There was no evidence that the offenders engaged in other acts with the victim, or attempted to engage in further acts on other occasions. 27His Honour noted that the offenders did not use violence or threaten the victim or importune her to silence. Nevertheless, his Honour noted from the statement of the agreed facts, that the victim felt threatened. His Honour concluded that the absence of threats might not substantially reduce the objective seriousness of the offending because the offenders were in a position of trust. 28The victim was aged 14 at the time. His Honour found that as such she was at the lower end of the age range in the counts of aggravated sexual intercourse under s66C(4). His Honour took into account that the court was concerned with the protection of vulnerable children from sexual exploitation and violation. The offenders knew the age of the victim. In this regard, the offenders exploited the youth of the victim. 29The victim was the daughter of friends of the offenders. Her parents had entrusted her to their care. The victim had no means of travelling home, which was some considerable distance away. Accordingly, his Honour found that the offenders were in a position of trust in relation to the victim and that they had abused that trust. 30His Honour did not apply the standard non-parole period which was applicable to the s61M(2) offence. This was because he assessed the objective gravity of the offending as falling below the mid-range of objective seriousness of offences of this kind. 31His Honour assessed the applicant's subjective case. He was born in the United Kingdom. He completed his schooling to age 18 and worked for a large hardware group as an advisor in electronic equipment until the family moved to Australia. He had been working as a train driver for three years before being charged with these offences. 32His Honour found that he could give only limited weight to the applicant's expressions of remorse. His Honour said: "Consistent with my finding in relation to the co-offender, while the offender is able to articulate genuine remorse, such are the qualifications to his expressions of remorse that I am unable to conclude that he has total insight into his offending. The weight to be given to his expressions of remorse is also limited." (ROS 29.3) 33The applicant had no criminal antecedents. He had the close support of his family. Mr Borrenstein, psychologist, while suggesting that it would be beneficial for the applicant to "process psychosexual issues further", assessed the likelihood of him re-offending as low. A less favourable assessment was made by Ms Usef, a forensic psychologist attached to the Probation and Parole Service. She strongly recommended that he enter into one of the sex offender programs available in custody, such as the CUBIT program. 34His Honour concluded: "I am of the view that the offender requires lengthy parole supervision in order to assist him in his reintegration into the community and to address long term treatment needs in relation to sex offending. For these reasons, I find special circumstances. I am unable to make any prediction as to the offender's prospects of rehabilitation. Intensive long term treatment will minimise the risk of re-offending." (ROS 30.8) 35Because of the applicant's early plea of guilty, his Honour found that he was entitled to a discount of 25 percent. 36His Honour considered accumulation and totality and said: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation and concurrence as well, of course, as questions of totality. Pearce v The Queen [1998] HCA 57; 194 CLR 610. In accordance with the approach in Pearce, sentences considered appropriate for each offence are to be determined and the overall objective criminality is then to be taken into account when considering whether they should be served concurrently or cumulatively upon one another, either in part or totally. That is, except perhaps in cases of multiple offences committed as part of a single, discrete episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to other offences for which that offender is to be sentenced. While the offending was part of a continuous course of conduct, the nature of the individual offences calls for some measure of accumulation." (ROS 31.5) 37In passing sentence, his Honour took into account the Form 1 matters in relation to offence (iv) and s3A of the Crimes (Sentencing Procedure) Act 1999. Most particularly, his Honour noted that he was required to impose a sentence that properly reflected the objective seriousness of the offence, the need for general deterrence and the protection of society. GROUNDS OF APPEAL Ground 1 - The extent of the accumulation of the sentences was excessive. Ground 2 - His Honour failed to adequately take into account the principle of totality. Ground 3 - The total effective sentence imposed is excessive in all the circumstances. 38These grounds of appeal raise the same issues. The applicant's submission was succinctly put by senior counsel as follows: The events of the evening of the offence were clearly one ongoing incident. The break down of the incident into a series of offences created the possibility that each action would be given more weight, and the assessment of criminality could be distorted and made more serious. This is what has happened. The circumstances here should be differentiated from a sexual assault where, for example, there was a break between assaults so that the repetition of each assault caused cumulative and exponential harm to the victim. In this case, the sentence for the most serious offence (i.e., offence (iv) to which the Form 1 matters were attached) very substantially reflected the criminality of the other offences. In the circumstances, the accumulation of the sentences and therefore the total effective sentence, exceeded that which was warranted to reflect the totality of the criminality involved. 39He submitted that, in summary, the offences committed by the applicant during the incident were of an extremely similar nature, took place on one occasion and had many overlapping features. It was therefore necessary that the sentences for each offence did not doubly punish the applicant. 40Senior counsel for the applicant accepted that some cumulation was necessary, but submitted that its extent in this case was appellably excessive and severe. By extending the total sentence by the partial accumulation of sentences, the total effective sentence became disproportionate to the totality of the offending (R v MAK [2006] NSWCCA 381; 167 A Crim R 159; Pearce v The Queen [1998] HCA 57; 194 CLR 610). He submitted that the total sentence failed to take into account that there was no substantial break in time between the offences and that the offending as a whole was part of one sequence and was of short duration. 41Senior counsel for the applicant did not challenge the individual sentences but the extent of the accumulation and the totality of the sentence imposed. Consideration 42As senior counsel for the applicant appreciated, there is no general rule of law that determines whether a sentence must be concurrent or consecutive: Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 per Howie J at [47]. The decision is a discretionary one. The overarching principle was enunciated by Howie J in R v Jarrold [2010] NSWCCA 69 at [56] where he said that concurrency should not be imposed: "... simply because of the similarity of the conduct or because it may be seen as part of one course of criminal conduct ... The question to be asked is, can the sentence for one offence encompass the criminality of all the offences?" 43As this Court has said on many occasions, and as was said again in LG v R [2012] NSWCCA 249: "24 ... the decision as to whether to accumulate in respect of multiple sentences is fundamentally an exercise within the discretion of the sentencing judge. As Simpson J observed in R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 at [7] "There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong." 25 The issue of totality, particularly in a case involving sexual offending, was discussed by this Court in R v MMK [2006] NSWCCA 272; 164 A Crim R 326 at [13] where Spigelman CJ (Whealy and Howie JJ agreeing) stated: "In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending ... This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion... The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman [2002] NSWCCA 516; 137 A Crim R 326." 26 In Gorman Sperling J said at [57]: "Relevantly the offences in the present case were committed in the course of the same episode. His Honour so found. However, each offence contributed to the total criminality involved and care had to be taken to ensure that the overall effective sentence was appropriate having regard to the offences which were committed in the course of that episode."" 44There is no rule that sentences for offences committed on the same day, or as part of the same criminal enterprise, should be served concurrently. A sentence should not be "concurrent simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct" (R v Jarrold (Howie J at [56]). The question to be asked is whether the criminality of the offence can be encompassed in the criminality of the other offence (Cahyadi v R). If not, the sentence should be at least partially cumulative, otherwise there is a risk that the sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the offences can be regarded as part of a single episode of criminality (Cahyadi v R at [27]). 45Similar observations are appropriate in the present case. The applicant was involved with the co-offender in a variety of sexual acts upon the victim. Each act involved separate criminality of varying degrees of significance. Although part of an overall event, the sentencing judge was required to identify a sentence appropriate for each separate act. The sentencing judge was mindful of the issue and specifically turned his mind to accumulation and totality (see [36] hereof). 46It was a matter for the sentencing judge to determine how the sentences should be structured to ensure that the overall sentence was appropriate for the total criminality involved. What cannot be ignored is that the sexual acts were carried out on an inexperienced and vulnerable 14 year old girl under the applicant's care. Despite the victim being described as "terrified", the applicant and his co-offender persisted in carrying out various confronting sexual acts with those acts only coming to an end when the applicant ejaculated. As was properly conceded on behalf of the applicant, some degree of accumulation was necessary to address the additional criminality reflected in these acts, in order for the totality of the criminality evidenced by the offences to be properly reflected. 47While other judges may have structured the sentences differently, the structure chosen by his Honour was open to him and I am not persuaded that the sentencing discretion has miscarried in a manner which would require the intervention of this Court. 48I would grant leave to appeal, but dismiss the appeal. 49HALL J: I agree with the orders proposed by Hoeben CJ at CL. 50DAVIES J: I agree with Hoeben CJ at CL.