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[2009] NSWCCA 149
Court of Criminal Appeal (NSW)
2009-05-01
Grove J, Buddin J, Clellan CJ
Original judgment source is linked above.
The applicant was aged 60 years at the date of sentence, having been born on 23 November 1946. He has no criminal record. He was living on the Sunshine Coast in Queensland with his wife and two children. This was his fourth long-term relationship and commenced in 1998. His wife suffers from Sjogrens Syndrome, an autoimmune disease. The applicant is a retired fireman. There was in evidence a pre-sentence report that set out his background. There was little of relevance other than that the applicant stated that his employment as a fireman led to traumatic incidents that resulted in his use of alcohol to cope with stress. This was particularly so after he attended the Luna Park fire in 1978. The applicant was in receipt of a pension and regular payments of compensation from the NSW Fire Service. The applicant expressed remorse for the offending to the officer preparing the report but was unable or unwilling to recall the details of the offences.
There was in evidence a report from Dr Westmore, a psychiatrist, dated February 2006. When asked about the offences, the applicant told Dr Westmore that he was drinking heavily at the time and having difficulties with his wife who was too concerned with the problems of her neighbours. He said that the victim would sit on his lap and it led him "to do these things". The applicant acknowledged that the behaviour was wrong and would have damaged the victim. He said that he did not find her sexually attractive but it was a release for him. The applicant told the psychiatrist that he had been drinking alcohol heavily for about 10 years until he sought counselling and attended AA. He was drinking only lightly at the time of the interview. Dr Westmore diagnosed the applicant as suffering from chronic symptoms of depression at the time of the offending. He did not find him to be a paedophile. He thought his risks of re-offending were negligible to non-existent and his prognosis was generally good. (at paras 3-7)
23 A little later, his Honour observed: However, it seems to me, notwithstanding due regard being paid to the discretion of the sentencing judge in a matter that presented no simple task, that such a starting point was manifestly excessive in what was an unusual case. It is not so much the fact that the offences occurred over 24 years ago that seems to place this case into a category of its own, because such delays while uncommon are not unknown, but rather the fact that, the offending having been brought to light, the applicant sought treatment and as a result and, most significantly, did not offend again. Over the period of time since offending the applicant had completely reformed and had moved onto other relationships without any suggestion of any similar conduct reoccurring. There is no error that I can discern in the sentencing remarks so far as the fixing of the overall head sentence is concerned. But it is one of those cases where my immediate reaction to the sentence was that it was too severe, given the delay and the applicant's reform. Having considered the sentencing remarks in detail and the arguments of counsel before this Court, I am convinced that my immediate reaction was correct. I think that what I said in Moon at [81] is perhaps even more appropriate in the somewhat unusual circumstances of this case: ... In a case such as this where there has been such a lengthy delay between offence and sentence and where the offender is rehabilitated, it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct. Although general deterrence is important it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the court. [paras 29-30] 24 An overall sentence of 3 years with a non-parole period of 18 months was substituted by this court for the original sentence of 4 years with a non-parole period of 3 years. 25 In Bradbury (supra), Matthews AJ, with whom the other members of the court agreed, set out the details of that offender's behaviour in the following terms: The victim in relation to each offence was the offender's youngest daughter. The offences took place when she was between 8 and 12 years old. Briefly, the activities covered by each of the four charges were as follows.
The first offence took place when the victim was about 8 years old. At that stage she would often have a bath while her mother was preparing dinner. Her father came into the bathroom, sat down beside the bath and touched her on the outside of her vagina with his fingers.
The second offence took place when the victim was 9 or 10 years old. She was called into the laundry by the applicant. He had his shorts open and his penis exposed. He took the victim's hands and placed them around his penis and testicles. He then made her rub these areas with her hands.
The third offence took place when the victim was 11 or 12 years old. One day after she had returned home from school, the applicant approached her while she was in the lounge room alone watching television. He started to wrestle with her in a joking manner. During the course of this he put his hand into her underpants and touched her on the outside of her vagina with his fingers.
The fourth offence occurred during this same period. The victim was again approached by the applicant one afternoon after returning from school. He took off her underpants and performed cunnilingus with her. He was masturbating at the time. Her vagina was sore after this occasion. [paras 4-8]
26 This court then proceeded to resentence the applicant, who was aged 80, to a head sentence of 2 years imprisonment with a non-parole period of 12 months. The original sentence had comprised a non-parole of 1 year 9 months with an additional term of nine months. 27 I should observe that the sentencing judge was provided with no assistance as to the principles which govern the sentencing of offenders for historical offences. Nor was his Honour made aware of the decision in AJB (supra). (The judgment in Bradbury was delivered after the applicant was sentenced). It is of course necessary to proceed with considerable caution when comparing one case with another. Obviously enough there are differences between the cases to which the Court was referred and the present one. The age of the applicant in Bradbury is one such point of distinction. Although it is not easy to now retrieve reliable data as to the appropriate range of sentences for offences of the present kind, the decisions to which I have referred nonetheless provide a useful guide as to that range. They also serve to confirm my own preliminary impression that the sentences which were imposed exceeded the legitimate range of the sentencing judge's discretion. 28 In my view, it is necessary to proceed to resentence the applicant. Section 76 encompassed a wide range of conduct which now falls within the definition of "sexual intercourse" in s 61H of the Act. Some of the offences that the applicant committed such as fellatio, cunnilingus and digital penetration constituted serious examples of the type of offending that was within the reach of the section. Moreover, the offending conduct extended over a five year span and it was rendered more serious because of the relationship of trust that existed between the applicant and his step-daughter. 29 In resentencing, I have had regard to an affidavit affirmed by the applicant. In it he indicates that he is employed on a full-time basis in the trusted position of clerk for the Superintendant of Industries. The applicant also indicates that he remains concerned about his son who is said to be exhibiting behavioural problems. 30 There is one further matter which requires comment and it arises from the following paragraph which appears in the applicant's affidavit: I am on the waiting list to do the 24 week CORE program. I am happy to do this program and am just waiting for my name to come up. I have been advised that I can not get parole until I have completed this course. 31 As I understand the situation, that program is designed, inter alia, to address the all important objective of reducing the risk of recidivism amongst offenders who have been convicted of offences of sexual misconduct. As I have already said, the sentencing judge concluded that the applicant did not represent such a risk. Nor has the court's attention been drawn to any other material which would suggest otherwise. I recognise that a decision about an offender's entitlement to be released upon parole is properly a matter which is within the province of the Parole Board. Nevertheless, I can see no legitimate reason why it should be regarded as an impediment to the applicant being able to obtain parole, should it transpire that he has not completed the CORE program at the time that his eligibility for parole arises for consideration. 32 I would find "special circumstances" for the reasons identified by the sentencing judge. 33 I propose the following orders:
3 Quash the sentences imposed in the District Court and substitute the following sentences:
(a) In respect of count 1, the applicant is sentenced to a fixed term of imprisonment of 12 months to commence on 17 August 2007 and to expire on 16 August 2008.
(b) In respect of count 2, the applicant is sentenced to a fixed term of imprisonment of 12 months to commence on 17 August 2007 and to expire on 16 August 2008.
(c) In respect of count 3, the applicant is sentenced to a fixed term of imprisonment of 18 months to commence on 17 August 2007 and to expire on 16 February 2009.
(d) In respect of count 4, the applicant is sentenced to a fixed term of 18 months imprisonment to commence on 17 August 2007 and to expire on 16 February 2009.
(e) In respect of count 5, the applicant is sentenced to a fixed term of imprisonment of 12 months to commence on 17 February 2008 and to expire on 16 February 2009.
(f) In respect of count 6, the applicant is sentenced to a fixed term of imprisonment of 12 months to commence on 17 February 2008 and to expire on 16 February 2009.
(g) In respect of count 7, the applicant is sentenced to a fixed term of imprisonment of 18 months to commence on 17 February 2008 and to expire on 16 August 2009.
(h) In respect of count 9, the applicant is sentenced to a fixed term of imprisonment of 18 months to commence on 17 February 2008 and to expire on 16 August 2009.
(i) In respect of count 8, the applicant is sentenced to a non-parole period of 18 months to commence on 17 February 2008 and to expire on 16 August 2009 and to a total term of imprisonment of 3 years 6 months to commence on 17 February 2008 and to expire on 16 August 2011.
The effective non-parole period is thus 2 years and the total term of imprisonment is 4 years. The applicant will be eligible for release on parole on 16 August 2009. **********
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GRD
R
AJB v R (2007) 169 A Crim R 32 Bradbury v R [2008] NSWCCA 93 Featherstone v R [2008] NSWCCA 71 CASES CITED : MJL v R [2007] NSWCCA 261 R v MJR (2002) 54 NSWLR 368 R v Thomas [2004] NSWCCA 291 R v Todd [1982] 2 NSWLR 517
In respect of counts 5 & 6: a 2 year fixed term to commence on 17 August 2008 and to expire on 16 August 2010; In respect of count 7: a sentence of imprisonment of 2½ years with a non-parole period of 2 years to commence on 17 August 2008 and to expire on 16 August 2010; In respect of counts 8 & 9: 4 years imprisonment with a non-parole period of 1 year to commence on 17 August 2009 and to expire on 16 August 2010. 16 The matter was re-listed the following day. Pursuant to the "slip-rule", which is contained in s 43 of the Crimes (Sentencing Procedure) Act 1999, his Honour made the following corrections to the sentences which he had imposed. In respect of each of counts 5 & 6: a fixed term of 1½ years imprisonment to commence on 17 August 2008 and to expire on 16 February 2010; In respect of count 7: a fixed term of 2 years imprisonment to commence on 17 August 2008 and to expire on 16 August 2010 17 A further document was created upon which those corrections were recorded. The warrants of commitment which were issued, pursuant to s 62 of the Crimes (Sentencing Procedure) Act 1999 on 23 and 24 August 2007 respectively, reflect what his Honour had recorded in the documents to which I have just referred. 18 I am satisfied that those documents, being the formal written record of the sentences, effectively remove any ambiguity about the individual sentences which his Honour had sought to impose. In R v Thomas [2004] NSWCCA 291, Handley JA, with whom other members of the court agreed, observed that: The first ground relies upon errors in the Judge's remarks on sentence and the inconsistency between some of those remarks and the sentence finally pronounced. …
Ground 1 20 It is now well established that a judge who is sentencing an offender in respect of historical offences, must do so by reference to the pattern of sentencing that existed at the time of the offending. Obviously that requirement extends to the imposition of an appropriate non-parole period: R v MJR (2002) 54 NSWLR 368; AJB v R (2007) 169 A Crim R 32; MJL v R [2007] NSWCCA 261; Featherstone v R [2008] NSWCCA 71; Bradbury v R [2008] NSWCCA 93. Each of the offences to which the applicant pleaded guilty occurred whilst the Parole of Prisoners Act 1966 was in operation. Unlike the Crimes (Sentencing Procedure) Act 1999, that Act placed no restriction upon the setting of the non-parole period. In AJB (supra) [at 36-9] and in Bradbury (supra) [at 36] this Court observed that non-parole periods imposed under that legislative scheme were usually in the order of between one third and one half of the head sentence. 21 It was contended on the applicant's behalf that a number of the individual sentences were on their face, manifestly excessive. It was submitted that in respect of counts 3, 4, 8 and 9 which, as I have said, each attracted a maximum penalty of 6 years imprisonment, the sentencing judge must have adopted a starting point of 5 years 6 months imprisonment before allowing the discount of 25% for the plea of guilty. It was submitted in respect of counts 5 and 6, that the starting point must have been the maximum penalty of 2 years imprisonment before the discount for the plea of guilty was applied and in respect of count 7, it was submitted that it was plain that the sentencing judge had made no allowance whatsoever for the plea of guilty because he had imposed the maximum penalty. Sentences of that length, it was submitted, could only have been imposed for offences which fell into the worst category of case and there was simply no basis upon which his Honour had, or indeed could have, reached such a conclusion. In my view, the applicant's submission should be accepted. 22 The applicant also placed considerable reliance upon the decisions of this court in AJB (supra) and Bradbury (supra). In AJB the offender was dealt with in respect of five counts of indecent assault and asked that four offences of a similar nature be taken into account. Howie J, with whom the other members of the court agreed, described the relevant factors in that case in the following terms: The offences were committed over a period of three years from 1979 against the applicant's stepdaughter. She was aged between six and a half and ten years at the time of the offending. Each of the offences was an indecent assault with a child under 16 years contrary to either s 76 of the Crimes Act , now repealed, or s 61E(1) of that Act. Each carried a maximum penalty of imprisonment for six years.
(2002) 54 NSWLR 368