GJ v R

Judgment 1SIMPSON J: I agree with Price J. 2PRICE J: GJ, the appellant, seeks leave to appeal out of time pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed upon him by Sweeney DCJ on 15 March 2012. 3The appellant had pleaded guilty in the Local Court to the following offences: (i) Sequence 1: An offence of aggravated sexual intercourse without consent, contrary to 61J(1) of the Crimes Act 1900 (NSW), which occurred between 16 September 2000 and 16 September 2002, with a victim who was under the age of sixteen years, namely aged seven or eight years. This offence carried a maximum penalty at the time of the commission of the offence of 20 years imprisonment. (ii) Sequence 9: An offence of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act, being an offence that occurred between 16 September 2005 and 16 September 2006, when the victim was under sixteen years, namely aged twelve years. The maximum penalty for an offence contrary to s 61M(1) is 7 years imprisonment with a standard non-parole period of 5 years. (iii) Sequence 16: An offence of aggravated indecent assault, contrary to s 61M(1) of the Crimes Act, being an offence that occurred between 16 September 2006 and 16 September 2007 when the victim was under sixteen years, namely aged thirteen years. (iv) Sequence 7: An offence of aggravated indecent assault contrary to s 61M(1) of the Crimes Act, being an offence that occurred between 16 September 2007 and 16 September 2008, when the victim was under sixteen years, namely aged fourteen years. (v) Sequence 11: An offence of using a child under fourteen years of age for pornographic purposes, contrary to s 91G(1)(a) of the Crimes Act, during the period 16 September 2005 and 16 September 2007, when the victim was twelve and thirteen years of age. The maximum penalty for this offence is 14 years imprisonment. (vi) Sequence 8: An offence of using a child above fourteen years of age for pornographic purposes, contrary to s 91G(2)(a) of the Crimes Act, during the period between 16 September 2007 and 16 September 2008, when the victim was fourteen years of age. The maximum penalty for this offence is 10 years imprisonment. 4All of the above offences were committed by the appellant on his youngest daughter. 5When adhering to his pleas of guilty in the District Court, the appellant asked her Honour to take into account on sentence four offences contrary to s 61M(1) of the Crimes Act that had been placed on a Form 1. 6The appellant was sentenced as follows (ROS 10): (i) Sequence 9; a non-parole period of 1 year's imprisonment, commencing on 20 January 2012, with an additional term of 1 year's imprisonment. (ii) Sequence 16; a non-parole period of 1 year's imprisonment, commencing on 20 January 2012, with an additional term of 1 year's imprisonment. (iii) Sequence 11; a non-parole period of 2 year's imprisonment, commencing on 20 January 2012, with an additional term of 1 year's imprisonment. (iv) Sequence 8; a non-parole period of 1 year's imprisonment, commencing on 20 January 2012, with an additional term of 1 year's imprisonment. (v) Sequence 7; a non-parole period of 3 year's imprisonment, commencing on 20 January 2013, with an additional term of eighteen months imprisonment. (vi) Sequence 1 (taking into account the four offences on the Form 1); a non-parole period of 4 years imprisonment, commencing on 20 January 2014, with an additional term of 3 years imprisonment. 7The total effective sentence imposed by the Judge was 9 years imprisonment commencing on 20 January 2012 and expiring on 19 January 2021, with a non-parole period of 6 years commencing on 20 January 2012 and expiring on 19 January 2018. The earliest date the appellant is eligible to be released on parole is 19 January 2018. 8The Judge had reduced the sentence by 25 per cent for the utilitarian value of the pleas of guilty. FACTS 9An agreed statement of facts was tendered which the Judge summarised in her sentencing remarks. The appellant was born in 1960 and married his wife in 1988, having three children. The youngest child was the victim of the appellant's offending. The offences took place between 2000, when she was 7 or 8 years old and the middle of 2008, when she was 14 years old. 10Shortly stated the facts are: Sequence 1: This offence occurred when the victim was 7 or 8 years old. The appellant went into her bedroom (which she shared with her older sister). The victim was asleep but awoke when he pulled her legs to the side of the bed. He pulled down her underpants, knelt on the floor and held her legs in the air. He licked her vagina for about two minutes. Sequence 11: On three separate occasions in March, May and July 2006 when the victim was 12 years old, the appellant photographed her naked body and vagina with his mobile telephone. He told her how to position her body before he took the photographs. On two other occasions, in October 2006 and June 2007, when she was 13, he engaged in the same conduct. All of this conduct was dealt with as one charge. Sequence 9: On one of the occasions in sequence 11 in 2006, the appellant took the victim's hand and moved it along the shaft of his penis. Sequence 16: On one of the occasions in sequence 11, in 2006 or 2007, when she was 13, the appellant touched her vagina with one of his hands. Sequence 8: On two occasions in January 2008 and August 2008, when the victim was 14, he used his mobile phone camera to photograph her body and vagina. This conduct was dealt with as one count. Sequence 7: When the victim was 14 and having a shower, the appellant got into the shower with her, kissed her on the lips and put his tongue in her mouth (Form 1 offence - sequence 4). He told her to put her hand on his penis and guided her hand along the shaft for about 10 minutes (Form 1 offence sequence 5). He then positioned her against the wall and stood behind her, rubbing his penis against her vagina and bottom, moving backwards and forwards for three to four minutes (sequence 7). The other Form 1 offences involved the appellant rubbing his penis against the victim's vagina (sequence 14) and moving her hand along the shaft (sequence 17). The appellant's subjective circumstances 11At the time he committed the offences, the appellant was aged 40 - 48 years. He was 52 years old when sentenced. 12The appellant had worked all of his adult life as a coach driver and had no prior convictions. 13In a report dated 21 November 2011, Dr Olav Nielssen, a psychiatrist, observed that the appellant did not have a psychiatric disorder, nor did he have any substance abuse issues. The Judge noted that Dr Nielssen reported that the appellant acknowledged his offences and expressed remorse for his behaviour. Her Honour stated (ROS 7): "Although [the appellant] did not give evidence in the sentence proceedings, I accept Dr Nielssen's professional opinion and accept [the appellant] is remorseful, as also indicated by his early pleas of guilty." 14The Judge related Dr Nielssen's dismissal of paedophilia and characterisation of the appellant's offences as "intra-familial, opportunistic offences that do not appear to be the result of a primary disorder of deviant sexual interest". Her Honour noted Dr Nielssen's opinion: "that this category of offence is typically associated with a lower risk of re-offending" (ROS 9). Her Honour observed (ROS 9): "Dr Nielssen's opinion bodes well for [the appellant's] prospects of rehabilitation." The adjournment application 15The application for leave to appeal was filed on 11 September 2014 some 2 years 6 months after the appellant was sentenced. An affidavit of Malcolm Douglas Carr, the appellant's solicitor, was filed in Court, which sought to explain the delay in instituting the appeal. As Mr Carr was not instructed prior to 4 December 2013, there was no material before the Court as to what may have occurred prior to that date after the appellant was sentenced. Mr R Sweet, the appellant's counsel recognised the difficulties that created for the appellant and sought an adjournment of the hearing of the appeal. 16The application for the adjournment was refused, as the Court considered that the proposed appeal had no merit and there were no prospects of success, even if the appellant was able to provide in the future a satisfactory explanation for the substantial delay in commencing the appeal. The Court was of the opinion that the rejection of the appellant's application did not cause any injustice to him. Grounds of Appeal 17The Notice of Appeal identifies two grounds, namely: