FV v Regina

LEGISLATION CITED: Crimes Act 1900 Evidence Act 1995

R v De Simoni (1981) 147 CLR 383 R v H [2005] NSWCCA 282 R v Uzabeaga [2000] NSWCCA 381 Chow v DPP (1992) 28 NSWLR 593 GAS v The Queen (2004) 217 CLR 198 R v Bakewell (CCA (NSW), unreported, 27.6.96) CASES CITED: R v Palu [2002] NSWCCA 381 R v Hammoud (2000) 118 A Crim R 66 R v EGC [2005] NSWCCA 392 R v Trevenna [2004] NSWCCA 43 R v George [2004] NSWCCA 247 T v R (1990) 47 A Crim R 29 Taouk v R (1992) 65 A Crim R 387R v Noble & Verheyden (1994) 73 A Crim R 379 R v Pellew [2004] NSWCCA 434

PARTIES: FV (App) Regina (Resp)

COUNSEL: R S Toner SC/G R Heathcote (App) Ms J A Girdham (Resp/Crown)

SOLICITORS: Proctor & Associates (App) S Kavanagh (Resp/Crown)

IN THE COURT OF CRIMINAL APPEAL 2006/824

McCLELLAN CJ at CL KIRBY J HOEBEN J

Thursday 17 August 2006 FV v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Kirby J. 2 KIRBY J: This is an application for leave to appeal against sentence. "FV" (the applicant) presented for trial at the Campbelltown District Court on 25 July 2005 in respect of a number of alleged sexual offences. The complainant was his daughter (who will be given the pseudonym "Theresa"). Before the matter was called on, there were discussions between the Crown and counsel for FV. As a consequence, the Crown presented a fresh indictment, which may be summarised as follows: Count 1 : That between 13.4.97 and 12.4.98 the accused committed aggravated indecent assault against a person under 16 years (namely, 12 years) contrary to s61M(1) Crimes Act 1900; (maximum penalty: imprisonment for 7 years). Count 2 : That between 1.9.00 and 31.10.00 the accused committed aggravated attempted sexual intercourse without consent of a person under 16 years of age (namely, 15 years) contrary to s61J(1), s344A Crimes Act 1900; (maximum penalty: imprisonment for 20 years). Count 3 : That between 1.1.01 and 31.3.01 the accused committed aggravated sexual intercourse without consent of a person under the age of 16 years (namely, 15 years) contrary to s61J(1) Crimes Act 1900; (maximum penalty: imprisonment for 20 years). 3 FV pleaded guilty to each count. Immediately after the pleas were entered, the Crown Prosecutor made the following statement: (25.07.05: T16) "(CROWN): I indicate for the record your Honour that when the matter does proceed to sentence, it will be proceeding on the basis of facts which have been agreed to and signed by the accused." 4 The matter was adjourned until 13 September 2005 for submissions on sentence. It came before Marien DCJ, who received evidence and heard submissions. I will describe more fully below what was said in the course of those submissions. His Honour reserved his decision. 5 On 10 October 2005, Marien DCJ sentenced FV as follows: Count 1 : Imprisonment for a fixed term of 3 months to commence 31.10.04 and expire 30.1.05. Count 2 : Imprisonment for a term of 7 years to commence 31.1.06 and expire 30.1.13, with a non parole period of 4 years and 3 months from 31.1.06 to expire on 30.4.10. Count 3 : Imprisonment for a fixed term of 2 years to commence 31.1.05 and expire 30.1.07. 6 The commencement date in respect of count 1 (31.10.04) reflected the date of FV's arrest when he entered custody. By reason of the accumulation of count 1 and the partial accumulation of count 3, the effective sentence was a term of imprisonment of 8 years 3 months, with a non parole period of 5 years 6 months.

The Notice of Appeal. 7 The Notice seeking leave to appeal identified seven grounds, as follows: Ground 1 : The learned sentencing Judge erred in taking into account matters that were not part of the Agreed Facts. Ground 2 : The learned sentencing Judge erred in making findings of fact adverse to the applicant which were not open to be made. Ground 3 : The offence in count 2 of the indictment being one of attempted sexual intercourse in circumstances of aggravation, it is submitted that in dealing with this offence of attempted sexual intercourse his Honour was precluded from having regard to evidence that penetration in fact occurred. Ground 4 : The offence in count 2 of the indictment being one of attempted sexual intercourse in circumstances of aggravation, it is submitted that in dealing with this offence of attempted sexual intercourse his Honour was precluded from having regard to evidence that the complainant suffered pain. Ground 5 : The learned sentencing Judge erred in accumulating, as he did, the sentence in respect of count 2 upon part of the sentence imposed in respect of the offence in count 3 of the indictment. Ground 6 : The learned sentencing judge erred in his assessment of the objective seriousness of the offences. Ground 7 : The sentence imposed is manifestly excessive." 8 Before dealing with the arguments of the applicant in support of these grounds, I should first describe what was said during the sentencing submissions and refer to the findings made by his Honour.

The Sentencing Submissions. 9 The same counsel who represented FV when the pleas were entered (25 July 2005) appeared on 13 September 2005 and made submissions on his behalf. When the matter was called on, counsel asked for time to examine certain subpoenaed material. After an enquiry by his Honour about progress, the suggestion was made that his Honour might usefully read "the Crown and defence material". The transcript recorded the tender of the following: (13.09.05) "EXHIBIT #A CROWN BRIEF TABBED 1-4 INCLUDING FACTS SUMMARY, STATEMENT OF [THERESA] AND THE CRIMINAL ANTECEDENTS OF OFFENDER TENDERED, ADMITTED WITHOUT OBJECTION." 10 The Crown also tendered a Probation and Parole report (Ex B). Counsel for FV then tendered a report from Mr John Taylor, a psychologist (Ex 1), as well as certificates in respect of various courses undertaken by FV whilst in gaol (Ex 2). His Honour then retired to chambers to read the material whilst counsel continued to examine subpoenaed documents. 11 Exhibit A included the document described as "Facts Summary" which was an agreed statement of facts. It began with these words: "Your Honour, The facts in this matter are ... " 12 There followed background material concerning the complainant, who was born in April 1985. She was, in 2005, twenty years old. She was one of two daughters of FV. FV's wife, the complainant's mother, died in mid 2000. The complainant continued to live with her father until 2001. 13 The statement provided details in respect of each count. In respect of count 1 (later reproduced by his Honour in his remarks on sentence), the following was said: " Count 1 - Warwick Farm May/June 1997 Aggravated Indecent Assault - Child Under 16 - s61M(1): In mid 1997 the complainant lived with her family in a flat at ... Warwick Farm. She recalls one evening in May or June 1997 when she was aged 12 watching a television movie. She was scared to go to sleep alone after the film and went to sleep in her parents' bed. At the time the offender, her mother and sister were in the bed. The complainant recalls that she went to sleep but was woken up when the offender touched and played with her breasts. The complainant was distressed and ran to her own room and complained to her mother about the offender's actions the next morning. When the mother confronted the offender he denied sexually touching the complainant." 14 Count 2 was dealt with in the following terms (likewise reproduced in the remarks on sentence): "Count 2 - Cecil Hills - September/October 2000 Aggravated Attempted Sexual Intercourse - Child under 16 - s61J(1)/s344A: In early 1998 the complainant moved with her family into a new home at ... Cecil Hills. After the death of her mother in May 2000 the complainant continued to live at the premises with the offender and her younger sister. The complainant recalls another incident involving the offender that occurred in September or October 2000. She was 15 years old at the time. The complainant was asleep in her room at the house in Cecil Hills when she was woken by the offender who was naked lying in the bed next to her. He positioned himself over the complainant and attempted to have sexual intercourse with her trying to put his penis into her vagina. The complainant was distressed and told the offender 'No'. She was able to move away and ordered the offender from her room." 15 Count 3 was described as follows: " Count 3 - Cecil Hills - 2001 Aggravated Sexual Intercourse - Child under 16 - s61J(1): The complainant recalls a third incident involving the offender in early 2001 when she was still 15 years old. She was again woken by the offender who was lying next to her in bed. The offender was kissing her and was moving one of his fingers in and out of her vagina. The complainant screamed and told the offender, 'Get out - don't touch me'. The next morning the offender apologised to the complainant for his actions." 16 The agreed statement also made reference to a telephone call. The call was made by the complainant to her father after she had been to the police. It was lawfully intercepted. The Statement described the call in these terms: "On Saturday morning 30 October 2004 the complainant made a phone call to the offender from Wetherill Park Police Station. ... In the phone call the complainant raised the matter of the offender's sexual activity with her. The offender repeatedly apologised to his daughter for his conduct and stated he didn't know why and the he had been 'so lonely and depressed'. The offender admitted it was 'all his fault' and said that the problem was that she was 'too beautiful'. The offender also said 'I'm very sorry and I realised a long time ago what I done and its wrong, completely wrong.'" 17 The agreed statement was dated 25 July 2005 and was signed by the Crown Prosecutor and FV. 18 Exhibit A also included a statement by the complainant. Parts of the statement had been blacked out. Paragraph 10 provided an elaboration upon the brief description of the circumstances in which the applicant fondled her breasts. The complainant described, in the paragraphs that followed, the sequel, where she told her mother and her mother later confronted her husband. 19 The complainant's statement dealt with the death of her mother on 11 May 2000. She then described the circumstances of the attempted sexual intercourse, the subject of count 2, a few months later. The statement was as follows: "18. ... I was in bed sleeping; most times I would go to bed about 10.00 pm on average. About 1 - 2.00 am I woke up to feel that there was somebody lying on the bed with me ... I woke up and I saw that it was dad. He was laying close to me and I could feel that he was naked. My nightie was pushed up to my neck. Dad then got on top of me ... 19. I was lying flat on my back while this was happening and I felt that my dad had pushed my legs apart. He tried to push his penis into my vagina. He only got part of it in, he kept trying to push it in, but he just couldn't get it to go in. He kept trying and it was hurting me as he was trying to push it in. I said, 'No'. ... I said, 'Don't touch me, get away from me, get out'." 20 Significant portions of each paragraph had been blacked out. The balance of the statement dealt with count 3, and the events thereafter, including the complainant leaving her father's home to live with her grandparents. 21 A report of Mr Taylor, psychologist, was tendered on behalf of the applicant. It included a description of the circumstances giving rise to count 2, providing the applicant's perspective. It said this: "With regard to the second offence, which occurred in 2000, he said that he doesn't know why he did this. He said that the offence occurred about 4 months after his wife had died and he said that he had been feeling very lonely. He said that he first became aware of becoming sexually attracted to [Theresa] during the time that his wife was ill. He said that after his wife was diagnosed with breast cancer in 1998 there was no further sexual relationship between them for the 2 years until she died. He said that during his wife's illness, 'I didn't have time to do anything else but to look after them. I was feeling lonely. I didn't have any time for other women.' He also stated that when his wife became ill she got [Theresa] to do some of the things that she would normally do with him, for example the shopping. He said that his wife had encouraged [Theresa] to assume aspects of her role in terms of household responsibilities and to become a mother figure. He said that during this time he has also become very worried about financial matters because prior to his wife becoming ill they both worked. He said that despite his wife's illness and subsequent death both his daughters wanted to keep up with the same standard of living that they had previously enjoyed." 22 Having read this material, the sentencing hearing resumed. No witnesses were called. FV did not give evidence on sentence. Counsel for FV made submissions, taking his Honour in detail to various paragraphs in the complainant's statement. In the course of these submissions, the following exchange took place concerning count 2, where his Honour was clearly drawing upon material in the complainant's statement: (13.09.05) "WASILENIA: Thank you. So dealing with the second count your Honour, in my submission standing discreetly it wasn't a case that necessarily called for full time custody although your Honour I concede that that would have been the starting point in terms of its without any background. That is this class of offence calls for a custodial sentence as a starting point. HIS HONOUR: I certainly take that view. WASILENIA: Yes. HIS HONOUR: It's a father against - with respect to his natural daughter attempting to put his penis into her vagina and that is painful to her. She says in her statement that that was causing her pain and discomfort and she told him to get off her. WASILENIA: And he did. HIS HONOUR: And he did. So if I look at the type of attempt sexual intercourse, then we are up in the more serious area, that is penile/vaginal intercourse causing pain to the complainant and it's the natural father. How could anything other than a full time custodial sentence be appropriate? WASILENIA: No, it's the starting point. But your Honour distinguishing it from other cases, it's not a case of actual penetration. HIS HONOUR: Because the complainant pushed him off her." 23 The applicant's counsel having completed his submissions, his Honour then called upon the Crown, stating the following: (13.09.05) "HIS HONOUR: Thank you. Mr Crown, I have indicated my view particularly about count 2. ..." 24 His Honour then dealt with other aspects, in respect of which he wished to hear from the Crown.

Remarks on Sentence. 25 Having set out the statement of facts in respect of each count in his Remarks on Sentence, his Honour added the following, in the context of count 2, drawing upon the statement of the complainant: (ROS 5) "In [Theresa's] statement to the police, of 7 October 2004, which is before me in the sentence proceedings, without objection, she describes the circumstances of the commission of the second count on the indictment of aggravated attempt sexual intercourse without consent. ..." 26 There followed an extract from the complainant's statement, including the following words: "... He tried to push his penis into my vagina. He only got part of it in, he kept trying to push it in but he just couldn't get it to go in. He kept trying and it was hurting me as he was trying to push it in. I said, 'No. Don't touch me, get away from me, get out.' ..." 27 When dealing with the applicant's criminality concerning the second count, his Honour said this: (ROS 14) "The second count of attempted aggravated sexual intercourse without consent, relates to attempted penile vaginal intercourse. That falls at the higher end of objective seriousness for offences of sexual intercourse. Whilst the offence involves an attempt only, it is to be remembered however, that the Offender tried to, and persisted in trying to insert his penis into the vagina of the victim, but was unable to do so. She said that this hurt her, and that he persisted. That clearly is a relevant circumstance to take into account in assessing the objective seriousness of this offence. Again, this offence is also aggravated by the fact that the victim was under the authority of the Offender, and that the offence, again, involved a gross breach of trust." 28 At the time of passing sentence in respect of the second count, the attempted sexual intercourse, his Honour made the following statements: (ROS 17) "In my view, the second count on the indictment is the most serious charge for which the Offender stands to be sentenced. It was, as I have said, an attempt to have penile/vaginal sexual intercourse. But the fact that it was only an attempt does not reduce, in my view, the very serious objective circumstances surrounding this offence. It carries a maximum penalty of twenty years imprisonment, and as I have stated, it is the evidence before me that the Offender tried, unsuccessfully, to push his penis into the victim's vagina, that that was causing her pain, and that he persisted, but was unable to insert his penis into her vagina." 29 Against that background, let me turn to the first four grounds of appeal.

Grounds 1 to 4: Fact Finding by His Honour. 30 It is convenient to deal with grounds 1 to 4 together. It was the applicant's submission that his Honour had fallen into error in a number of respects. First, it was plain from the statement of the prosecutor, when the pleas of guilty were entered, that the matter was to proceed upon the basis of agreed facts. It was therefore not open to his Honour, according to the applicant, to go outside the agreed statement in determining the circumstances giving rise to each count, and specifically count 2. 31 Secondly, and alternatively, if his Honour could have recourse to the additional material, he was subject to a number of limitations. He could not, it was submitted, make a finding inconsistent with the agreed facts. Further, he could not take into account facts which amounted to an aggravated form of the offence (R v De Simoni (1981) 147 CLR 383). Reference was also made to R v H [2005] NSWCCA 282, where Studdert, Bell and Latham JJ said this: "58. In a case in which agreement has been reached on the factual basis on which an offender is to plead guilty following a 'plea bargain' (as appears to have happened in this case), the wisdom of tendering the entire Crown brief in addition to the agreed statement may be doubted. It runs the risk that the sentencer will take into account facts that would aggravate the offence contrary to the principles in R v De Simoni (1981) 147 CLR 383; see too R v Paul [2002] NSWCCA 381; 134 A Crim R 174 at 180. In this case the statements of the complainants contained descriptions of conduct for which this applicant was not criminally responsible. Some of this material found its way into the Judge's reasons and it formed the basis of findings that were adverse to the applicant." 32 Here, the complainant's statement was capable of suggesting actual penetration, whereas the applicant had pleaded guilty to an "attempt". The pain, upon which his Honour placed some emphasis, was, on the applicant's argument, associated with penetration. It was therefore not open to his Honour to find that the attempt caused physical pain (as opposed to the distress referred to in the agreed statement of facts). 33 Thirdly, and again alternatively, if his Honour were minded to make a finding inconsistent with the agreed statement of facts, he was obliged, as a matter of procedural fairness, to warn the parties of his intention and to invite submissions. Here, according to the applicant, there had been no such warning. Attention was drawn to R v Uzabeaga [2000] NSWCCA 381, which was a sentence appeal. Juan Uzabeaga had pleaded guilty to the importation of drugs. He was one of a number associated with the importation. The Crown tendered a statement by a police officer which sought to place the offender within the hierarchy of those charged with the same offence. The submissions made to the sentencing Judge were in accordance with the police officer's expression of opinion. Bell J (with whom Simpson and Dowd JJ agreed), said this: "30. Mr Byrne did not seek to contend that a sentencing judge was bound by the statement of agreed facts. However, he submitted that it was an error if his Honour was minded to approach the matter upon a basis other than that disclosed by the agreed facts to fail to warn the parties of that intention in order to give the parties an opportunity to meet it. It was contended that the applicant had been entitled to approach the sentence hearing upon an assumption that his culpability would be viewed by the sentencing judge as of a lesser order than the culpability of Henao and Guzman." 34 Having reviewed the authorities, her Honour concluded as follows: "38. In my view, the sentencing judge erred in failing to inform the applicant that he was minded to sentence him upon an assessment of his relative culpability which differed from that contained in the agreed facts and in failing to give the applicant the opportunity to address that matter by evidence or otherwise." 35 Fourthly, reference was made to s191 of the Evidence Act 1995, dealing with agreement as to facts. Where facts have been agreed, certain formalities are required (s191(3)). Here, it was suggested that the formalities had been observed. The agreed statement was signed by the Crown and the offender. Where the formalities are met, no evidence can be adduced to contradict or qualify an agreed fact, unless the Court gives leave (s191(2)(b)). Here, no leave had been sought or was given. 36 The Crown, responding to these arguments, pointed out that the material had been tendered. No objection was taken. It is too late to object on the appeal. The Judge was entitled to act upon the evidence before him. He was, moreover, not bound by any agreement between the parties. Reference was made to the statement of Kirby P in Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, where the following was said: (at 606) "The foregoing rules do not oblige a sentencing judge passively, and unquestioningly, to accept facts as to the basis for sentencing which are presented by the prosecution and/or the accused. The judge's sentencing discretion is to be exercised in the public interest. Even where the prosecution and the accused are agreed, they cannot fetter the judge's performance of the judicial function by their plea bargaining: see Malvaso v The Queen (1989) 168 CLR 227 at 223; R v Altham (NSW CCA, 18 June 1992, unreported per Hunt CJ at CL). A statement of agreed facts may appear to the sentencing judge to be inadequate for sentencing purposes. The judge may feel the need for further material, for example, by way of pre-sentence report to assist in the performance of the sentencing function. The parties cannot forbid the judge to seek such assistance. They have their respective functions to perform. But they cannot invade the judicial function any more than the judge may invade their functions." 37 Here his Honour gave, according to the Crown, fair warning of his thinking in respect of count 2, basing his comments upon the elaboration by the complainant in her statement. He raised the issue with counsel for FV in the passage set out above, in an exchange which was described as "robust debate" by counsel for the applicant. It was, the Crown suggested, the opportunity which his Honour gave the defence to comment upon aspects of the complainant's account which his Honour obviously regarded as important. 38 The facts which his Honour ultimately found were not consistent with an aggravated form of the offence, infringing the principle of De Simoni. Rather, his Honour described the circumstances in which the attempt had occurred. 39 Finally, the Crown submitted that s191 of the Evidence Act 1995 had no application. The Evidence Act does not apply to sentencing proceedings, absent an order by the sentencing Judge (s4(2)). Here, his Honour made no such order. 40 Was there error in respect of the use by his Honour of the complainant's statement? The material, including the complainant's statement, was admitted without objection. It was used extensively in submissions by counsel for FV. It was open to his Honour to have regard to it. It GAS v The Queen (2004) 217 CLR 198, the Court (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) set out a number of principles relevant to a "plea agreement" reached with the defendant at trial. The principles included the following: (at 211) "30. Thirdly, it is for the sentencing judge, alone, to decide the sentence to be imposed ( R v Olbrich (1999) 199 CLR 270). For that purpose, the judge must find the relevant facts ( Cheung v The Queen (2001) 209 CLR 1 at 9-11 [4]-[10]). In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case ( R v Olbrich at 278 [15]). The present appeal provides an example. The limitation arose from the absence of evidence as to who killed the victim, and the absence of any admission from either appellant that his involvement was more than that of an aider and abettor. 31. Fourthly, as a corollary to the third principle, there may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge's capacity to find facts will be affected by the evidence and the admissions. ... " 41 Certainly there are dangers where the parties choose to supplement an agreed statement of facts with additional material, as recognised by Studdert, Bell and Latham JJ in R v H (supra para 30). Indeed, the dangers were described by the Court in R v Bakewell (CCA (NSW), unreported, 27.6.96) where Gleeson CJ said this: "Where a person is charged with a certain offence and the Crown accepts a plea of guilty to a lesser offence, it it often the case that the victim of the crime gives an account of the circumstances which, if true, means that the offender was, in reality, guilty of the more serious offence. That can place the sentencing judge in a very awkward position, as the facts of the present case demonstrate. It was held in The Queen v De Simoni (1981) 147 CLR 383 at 389 that: 'A judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.' The consequence is that particular care may need to be exercised where a sentencing judge is invited by the Crown to receive a victim impact statement, and take that victim impact statement into account for the purpose of the sentencing process. As the facts of the present case illustrate, the victim impact statement may well be based upon an account of the facts which includes circumstances of aggravation of the kind referred to in De Simoni . When that occurs, it will often be impossible to separate consideration of the impact upon the victim of the events, as he or she describes them, from consideration of what the impact might have been, absent the aggravating features of the case. Indeed, in many cases, as in the present, any attempt to do that would be hopelessly artificial. What went wrong in the present case was the tender by the Crown of a victim impact statement in which a psychologist made an assessment, based upon the presence of aggravating circumstances which the judge was not entitled to take into account in the sentencing exercise." 42 Count 2 was the crime of aggravated attempted sexual intercourse without consent. The statement of the complainant (forming part of Ex A) certainly included the suggestion that the attempt succeeded and that there was penetration ("He only got part of it in ... "). However, the same sentence also included a contradiction ("... but he just couldn't get it to go in.") When his Honour came to sentence, he did so upon the basis of an attempt. He said as much repeatedly. He did not, in my view, breach the De Simoni principle. 43 As I read his Honour's remarks, the complainant's statement was used as an elaboration upon the agreed statement. It supplemented, not contradicted, that statement. The complainant's statement provided insight into the duration of the complainant's ordeal. FV had been persistent. It also identified an aspect of the complainant's distress. She had felt physical pain as the applicant parted her legs, and attempted to gain entry. The physical pain arose through that conduct, not through penetration. 44 Even were the Evidence Act to apply, the material tendered, and ultimately relied upon by his Honour, did not, in my view, "contradict or qualify an agreed fact" (cf s191(2)(b) of the Act; R v Palu [2002] NSWCCA 381, per Howie J at paras 39-40). I see no error in his Honour's approach. 45 Nor do I see unfairness. His Honour raised with counsel his concerns, which counsel sought to answer. 46 I would dismiss grounds 1, 2, 3 and 4.

The Sentence Imposed. 47 The remaining grounds are concerned with the length of the sentence and whether it was excessive. Ground 5 : The learned sentencing Judge erred in accumulating, as he did, the sentence in respect of count 2 upon part of the sentence imposed in respect of the offence in count 3 of the indictment. Ground 6 : The learned sentencing judge erred in his assessment of the objective seriousness of the offences. Ground 7 : The sentence imposed is manifestly excessive." 48 No submissions, written or oral, were made in support of ground 5. The criminality in each count was different, the offences were different, and they occurred at different times. It was plainly open to his Honour to accumulate, or partially accumulate, the sentences he imposed (R v Hammoud (2000) 118 A Crim R 66, para 7, per Simpson J) and, subject to the question of totality, it was entirely appropriate to have done so. 49 Grounds 6 and 7 may be dealt with together. No complaint was made in respect of the sentences for counts 1 and 3. The arguments of the applicant were directed towards the sentence in respect of count 2 (imprisonment for 7 years with a non parole period of 4 years and 3 months) and the effective sentence overall (imprisonment for 8 years and 3 months with a non parole period of 5 years and 6 months). 50 Without injustice to the applicant's position, it can be summarised as follows. First, his Honour was obliged to discount the sentence imposed by 15% to reflect the plea of guilty. Applying that percentage to the sentence overall, the starting point was a sentence of 9.7 years. Applying the same percentage to the sentence imposed in respect of count 2, the starting point must have been of the order of about 8.25 years. Each was, according to the applicant, too high. 51 Secondly, the applicant drew attention to a recent decision of this Court, R v EGC [2005] NSWCCA 392 (Sully, Hulme and Latham JJ), where the Court was dealing with far more serious offences. In that case there were four counts and a matter on a Form 1. There were two victims. They were the stepdaughter and stepson of the applicant. They were very young children (each below the age of 10 years) when sexually abused. The abuse included anal intercourse in the case of the stepdaughter. The effective sentence was 6 years with a 3 year non parole period. 52 Thirdly, the statistics of the Judicial Commission demonstrated, according to the applicant, that the sentence in respect of count 2 (and hence the aggregate) was too high. The statistics were an exhibit before his Honour. In respect of attempted aggravated sexual assault (s61J Crimes Act), there was a small sample of cases (eight in all). None had been sentenced to 10 years. Thirteen percent had been sentenced to 9 years and 13% to 8 years. The rest (74%) had been sentenced to terms below 5 years. In respect of the complete offence of aggravated sexual assault, the sample was significantly larger (191 cases). Whilst there are different forms of sexual penetration, some more serious than others, the bulk of sentences were below 6 years. Approximately 10% received sentences of 10 years or more. The statistics, it was said, confirm that the sentence was simply too high. 53 Fourthly, serious though the offence was, it was an attempt which was abandoned. There was no penetration. There were many matters in mitigation. When appropriate weight is given to the objective and subjective matters, the sentence was, according to the applicant, manifestly excessive. 54 The Crown responded to these arguments by cautioning against reliance upon a single case as creating some sort of tariff (R v Trevenna [2004] NSWCCA 43, per Barr J, para 99; R v George [2004] NSWCCA 247). In any event, R v EGC (supra), involved significant delay between the offences and the trial. There was evidence of rehabilitation in the meantime. The Crown also emphasised that the statistics from the Judicial Commission, in the case of attempted aggravated sexual assault, were a small sample which could not provide a useful comparison without an understanding of the subjective and objective facts in each case. 55 There were, the Crown emphasised, a number of aggravating features which his Honour identified. First, the applicant had not been charged with an isolated act. It happened in 1997 when FV's wife was alive. It happened again in October 2000, some five months after her death, and again in January 2001. Secondly, the victim was the offender's natural daughter, then aged 15 years. It was, as his Honour said, a gross breach of trust. Deterrence was an important aspect.

Was the Sentence Excessive? 56 There can be no question that collectively these offences (and especially count 2) were objectively very serious. However, the criminality of the appellant had to be placed in the spectrum of serious misconduct which these offences involved. What then, was the objective criminality of the appellant, especially in relation to count 2? What were the matters in mitigation? 57 Although the conduct in each count was different, and some counts more serious than others, there were a number of aggravating features, as his Honour said. The victim was the applicant's daughter. She has been psychologically scarred as a result of his actions. It was not a case of an isolated lapse. Each offence was, as his Honour found, a gross breach of trust by a parent towards his child. Counts 2 and 3 occurred at a time when the victim was the more vulnerable by reason of the recent loss of her mother. Deterrence and denunciation were important aspects of any sentence imposed. 58 As mentioned, there was no complaint in respect of his Honour's characterisation of counts 1 and 3 and the sentences imposed. There can be no complaint, as I have found, with his Honour's decision to accumulate (in the case of count 1) and partially accumulate (in the case of count 3) such sentences, subject to the issue of totality. The debate concerns count 2. 59 A number of observations should be made in respect of count 2. First, the age of the child is important in determining the criminality of the offender. The younger the victim, the more serious the criminality (T v R (1990) 47 A Crim R 29). Here, the victim was 15 years old. The age limit in respect of the offence under s61J(1) is 16 years. The complainant's relative maturity enabled her to protest strongly, such that the appellant abandoned his attempt. 60 Secondly, the charge in count 2 was an attempt, not the completed offence. In some circumstances an attempt may be as serious as the completed offence, such as an attempt to bribe a Judge (Taouk v R (1992) 65 A Crim R 387). Usually, however, and in the context of this offence, an attempt will be less serious than the completed offence. In R v Noble & Verheyden (1994) 73 A Crim R 379, the Court (Davies, Pincus JJA and Williams J) said this, in the context of an armed robbery offence: (at 381) "The argument advanced in favour of Verheyden concentrated on the fact that the offence was not completed, that the applicant suffered injuries in the commission of the offence, and that no account was taken of a period during which he was, it was said, in custody. As to the first point, that there was an attempt only, that is plainly a factor in favour of reduction of sentence. ... " 61 His Honour, in the course of his remarks, when dealing with the seriousness of count 2, said this: (ROS 17) " ... But the fact that it was only an attempt does not reduce, in my view, the very serious objective circumstances surrounding this offence. It carries a maximum penalty of twenty years imprisonment ... " 62 His Honour's words are perhaps capable of more than one meaning. If, by his remarks, his Honour was referring to the features of the assault which he had identified (the offender's persistence and the fact that it had caused the complainant pain) the statement is unexceptional. If, however, his Honour was suggesting that an attempted aggravated sexual assault was the equivalent of a completed offence, in terms of seriousness, I would, with respect, disagree. Although the maximum penalty in respect of the completed offence (s61J(1)) and an attempt (s344A Crimes Act 1900) is the same, an attempt, in my view, in the context of this offence, is less serious than the completed offence. It would plainly have been much more serious had the applicant sought to overcome his daughter's resistance and completed the offence. 63 Thirdly, although his Honour was entitled in my opinion to have regard to the complainant's statement in order to better understand what happened in respect of count 2, there were limits in respect of inferences that could legitimately be drawn from the spare material which his Honour had available. There was no evidence as to how long the episode lasted. One does not get the impression that it was prolonged, although it was not momentary. The complainant, in her statement, described the way in which it ended in these words: "19. ... he kept trying to push it in, but he just couldn't get it to go in. He kept trying and it was hurting me as he was trying to push it in. I said, 'No'. ... I said, 'Don't touch me, get away from me, get out.' I was shaking when I said this to him. I pulled the sheets up over myself and moved as far from him as I could. Dad did not say a word to me; he just walked out of the room. ... " 64 Since this was an attempt, the pain felt by the complainant was, by definition, not pain arising from penetration. There was no suggestion of physical injury. The physical pain no doubt ceased once the applicant abandoned his attempt. The psychological pain, of course, endures to this day. 65 Turning, then, to the subjective features. There were a number of matters in mitigation. First, the applicant pleaded guilty, although not at the earliest opportunity. His Honour determined that a 15% discount was appropriate. 66 Secondly, the applicant was a person of good character. He was born in December 1959. He was, at the time of the sentence, 44 years old. He had never previously been in gaol. Indeed, he had no criminal convictions. He had been brought up in Chile in deprived circumstances. He came to Australia at the age of 23 years. He later married and had two children, the complainant being his eldest child. He acquired various qualifications which enabled him to work in the printing industry. He was described as industrious. 67 His Honour, dealing with this aspect, said this: (ROS 12) " ... But it must be remembered that, with respect to offences of this kind, less weight must be given to the factor of good character. In R v Kennedy [2002] NSWCCA 527, Justice Howie said at para 22, that good character might attract less weight than normal in the sentencing process where there is a pattern of repeat offending over a significant period of time, such as in child sexual assault cases, where there is an ongoing relationship between the offender and the victim." 68 The circumstances of this case do not, in my view, meet the qualification of Howie J in that statement of principle. That said, it is accurate that, in respect of crimes of this sort, prior good character is of less significance, although it should not be disregarded. 69 Thirdly, his Honour accepted that the applicant was contrite. He acknowledged his responsibility. He told the psychologist of his shame. He said he believed that he deserved to be in gaol. He had endeavoured to apologise to the complainant and make it up to her in various ways, including buying a car and paying for an overseas trip. 70 Fourthly, the applicant had used his time in gaol well. He had undertaken various courses which he hoped would help him address the problems revealed by his conduct. He was willing to participate in the Sex Offenders Treatment Programme. His Honour determined that his prospects of rehabilitation were good. 71 Fifthly, from the date of his arrest (31.10.04) to the date he was sentenced (10.10.05) the applicant had been held in protection. It was suggested at the sentencing hearing that he was likely to remain in protection. His Honour, referring to R v Pellew [2004] NSWCCA 434, said that such a submission must be grounded upon clear evidence. Whilst recognising that the applicant had been held in protection for 15 months awaiting sentence, his Honour dismissed as pure speculation the suggestion that he may be held in protection in the future (ROS 16). He was not prepared to discount the sentence upon that basis. No reference was made to the Probation and Parole report which did provide some evidence concerning this issue, although the regime it described was not one of isolation which is sometimes associated with protection. The Probation and Parole report said this: (p5) "It was noted in the interview with Forensic Psychology that, although due to the nature of the offences he would complete a custodial sentence in protective custody, if [FV] participates in a sex offender program he will be housed in an area where he could experience relative freedom of movement throughout the correctional centre, and access to programs and education." 72 Finally, it should be noted that the conduct, the subject of counts 2 and 3, occurred within a short time of the death of the applicant's wife. From the viewpoint of the victim, as mentioned, that was a time of vulnerability, where the breach of trust by a parent would be felt the more keenly. But it was, at the same time, no doubt, a time of loneliness, grief and vulnerability on the part of the applicant. That plainly is not an excuse for his behaviour. It is, however, part of the explanation. 73 Weighing these matters in the context of such assistance as is provided by the statistics of the Judicial Commission and various cases dealing with similar offences, including R v EGC, I have come to the view that the sentence overall was excessive, by reason of the sentence in respect of count 2. Serious though the crimes unquestionably were, they did not, in my view, warrant a starting point of almost 10 years (9.706 years) before the discount for the plea of guilty. In my opinion there was error and there is the need to resentence.

Resentence. 74 In resentencing the applicant, I would not disturb the sentences in respect of counts 1 and 3, nor the accumulation of count 1 and the partial accumulation of count 3. 75 Turning to count 2, I believe the appropriate sentence is 6 years. I would adopt his Honour's finding of special circumstances for the reasons his Honour gave, and fix a non parole period of 3 years. The overall term, taking account of the accumulation, would then amount to 7 years and 3 months with a non parole period of 4 years and 3 months.

3. That the sentences imposed by his Honour in respect of counts 1 and 3 be confirmed.

4. That the sentence imposed by his Honour in respect of count 2 be quashed and, in lieu thereof, the applicant should be sentenced to a term of imprisonment of 6 years commencing on 31.1.06 and expiring on 30.1.12, with a non parole period of 3 years commencing on 31.1.06 and expiring on 30.1.09. 77 HOEBEN J: I agree with Kirby J.

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