Haak v R

Background

1. In November 2019, the applicant stood trial before Weber DCJ and a jury of twelve on an indictment that charged him with two offences against AB namely committing an act of indecency on a person under the age of ten years contrary to former s 61M(2) of the Crimes Act 1900 and having sexual intercourse with a person under the age of ten years contrary s 66A of the Crimes Act. On 15 November 2019, the jury returned verdicts of guilty on both counts.
2. The offences were charged as having been committed between 25 September 2007 and 27 September 2008 when AB was nine years old (the "2007 offences"). The maximum penalty for an offence under former s 61M(2) was 10 years imprisonment. For the period of the charge prior to 1 January 2008 the standard non‑parole period for this offence was 5 years' imprisonment, however that was increased to 8 years from that date. As the sentencing judge was not satisfied beyond reasonable doubt that the offence was committed after 1 January 2008, his Honour applied the 5‑year standard non‑parole period. For the period of the charge the maximum penalty for an offence under s 66A was 25 years imprisonment. It carried a standard non‑parole period of 15 years imprisonment.
3. On 22 May 2020, his Honour imposed an aggregate sentence of 10 years' imprisonment with a non‑parole period of 7 years and 6 months. The sentences were fixed to commence on 7 July 2019. Subject to any intervention by this Court, the applicant will be first eligible for release on parole (at midnight) on 6 January 2027 and his sentence will expire (at midnight) on 6 July 2029. Pursuant to s 54A(2)(b) of the Sentencing Act, his Honour specified an indicative sentence of 3 years with a non‑parole period of 2 years and 3 months for the offence under former s 61M(2), and an indicative sentence of 9 years with a non‑parole period of 6 years and 9 months for the offence under s 66A.

The Offences and the Sentencing Judgment

1. In the sentencing judgment, his Honour succinctly summarised the circumstances of the offending as reflected in the jury's verdicts. As at the time of the offences the applicant was 58 to 59 years of age and was the pastor of a church. He lived with his wife on the property upon which the church was situated in the Hunter Valley. The victim and her family were also members of the church. They lived in a small cottage near the applicant's home on the property.
2. His Honour found: "On a weekend during the period to which I have referred, in which the victim was approximately nine years of age, the offender's wife was away from the property for the weekend. The offender arranged with the victim's parents for the victim and [her brother] to stay the night with the offender in his home. The offender, the victim, and her brother were to watch a recently released movie on DVD. The victim's parents agreed to the victim and her brother having the sleepover on the Saturday night. After watching the DVD, the victim and her brother went to bed. The victim went to bed wearing a T-shirt and long, flannelette pyjama pants. Later on in that night the offender woke the victim and said to her, 'Have you seen my waterbed?' The victim then followed the offender into his bedroom and to the waterbed, where he offered her a massage. The offender took out a bottle of oil, lifted the victim's shirt, and started to massage her back. He then rolled the victim over to lay her on her back and began to massage her breasts. This is count 1 on the indictment, the offence contrary to s 66M(2). The offender then removed the victim's pants, he pulled down his own pants to expose his erect penis, and placed his penis inside the victim's vagina, and had penile/vaginal intercourse with her. This is an act contrary [to] s 66A of the Crimes Act."
3. His Honour then addressed various factual disputes that were not resolved by the jury's verdict that are not necessary to address. In relation to the balance of the sentencing judgment I note five matters.
4. First, his Honour found that the offending was in the mid-range of objective seriousness having regard to the offending occurring in a home (Sentencing Act, s 21A(2)(eb)), involving a breach of trust (s 21A(2)(k)), occurring in the offender's bed, involving "some degree of sophistication" (or planning), the degree of physical contact and the form of intercourse involved in the s 66A offence and the age difference between the offender and the victim.
5. Second, his Honour noted the relevant sentencing factors and principles that were engaged including s 25AA(1) of the Sentencing Act described below. His Honour also noted a victim impact statement delivered by AB. Amongst other matters, AB described herself as living with "anxiety, depression, social anxiety, self-harm and hav[ing] attempted suicide".
6. Third, his Honour noted that in 2012 the applicant was sentenced on 15 counts of indecent assault that were committed against three young girls in 2010 for which he had served a sentence of 7 years with a non‑parole period of 4 years (the "2010 offences"). Evidence of the conduct the subject of those offences was adduced as tendency evidence in the applicant's trial. As to the relevance of those offences to the applicant's sentence for the 2007 offences his Honour found: "I have not taken [the 2010] offences into account to increase the sentence which I am about to impose, however, as counsel for the offender accepts, this offending denies him any basis to leniency. It is also conceded that the fact of these convictions denies the offender any prospect of a submission that the offending conduct before me was an aberration. It is also relevant, in my view, to issues of rehabilitation and the offender's risk of re‑offending, to which I shall now turn."
7. The relevance of the 2010 offences to his Honour's sentencing exercise is the subject of ground 1 of this application.
8. Fourth, his Honour found that the applicant's "prospects of rehabilitation are best to be rated in the medium range" as was his risk of re-offending.
9. Fifth, his Honour addressed the balance of his subjective case and rejected a submission that a finding of special circumstances should be made. As it is the subject of ground 2 of the application, it is appropriate to set out his Honour's reasons on this topic in full: "I turn then to the issue of special circumstances. The offender submits that the following constitutes special circumstances: 1. His age; 2. His progress in rehabilitation since offending; and 3. Finally this afternoon, reliant on viva voce evidence given by the offender, an argument was advanced that he has unfortunately been recently exposed to acts of violence involving the death of a fellow inmate. This inmate was of a similar age to the offender's son, who died in his mid-30s. This, it is said, has caused the offender to suffer considerable emotional distress, with the consequence that he will find his prison sentence more onerous than normal. The Crown does not accept that any of these matters constitute special circumstances, and I am of the same view. As to his age, I do not see this is a relevant factor as the sentence which I am about to impose will represent his second sentence served at a mature age in respect of similar offending committed at a mature age. As to his progress with rehabilitation since offending, this submission, in my view as I have indicated, is not supported by any evidence beyond the mere fact of his participation in programs. As to his exposure to violence in the prison system exposing him to the possibility that his incarceration will be more onerous on him than others, I do not accept that that is the case. Unfortunately acts of suicide, or homicide, or other forms of physical assault, are not uncommon in prisons. The answer to this problem is for the corrective authorities to continue to put in place arrangements to keep prisoners as safe as possible. The risk of exposure to violence within the penal system that the offender faces is not, in my view, qualitatively greater than any other offender, and as such is not a matter to be brought into account under s 44 as a special circumstance."

Ground 1: Totality

1. Ground 1 of the application contends that the sentencing judge "erred in the application of totality with regard to the applicant's 2012 sentence", that is the sentence for the 2010 offences.
2. The totality principle obliges a judge "who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved" (Postiglione v R (1997) 189 CLR 295 at 307-308; [1997] HCA 26; Mill v The Queen (1988) 166 CLR 59 at 62-63; [1988] HCA 70; "Mill"). It is most commonly given effect to by a sentencing judge imposing sentences that are appropriate for the individual offences and then making them partially, or sometimes wholly, concurrent (Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45]; "Pearce") or adopting an analogous approach for indicative and aggregate sentences. However, that is not the only means of applying the totality principle (Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [26]). For example, where an offender has previously served a sentence for an offence and is later sentenced for one or a number of offences of similar character committed in the same episode of criminality to their original sentence and the sentence for the latter offences cannot be backdated, then the only course available may be "to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody" (Mill at 66-67; Wu v R [2011] NSWCCA 102 at [53]). Depending on the legislative context, both the approach adopted in Pearce and the approach of lowering the sentence discussed in Mill are open to sentencing judges when applying the totality principle. The approach discussed in Mill is not confined to circumstances where the offender had already been sentenced by another court and the sentence to be imposed cannot be backdated (Johnson at [26]; see for example Humphries v R; Ponfield v R [2016] NSWCCA 86).
3. Ground 1 raises an issue about the obligation of sentencing judges to consider totality in circumstances said to be those commonly addressed by the Mill approach, that is an offence or offences dealt with separately but said to warrant some consideration of earlier sentences that have since expired. In Porter v R [2019] NSWCCA 117 ("Porter") this Court upheld a contention that a sentencing judge erred in his approach to the principle of totality in such circumstances. In Porter the offender was sentenced in 2018 for sexual offences committed against his victim in January 2002. He had previously been sentenced for two sets of similar sexual offences, one set committed in February 2002 (at [23]) and the other in February 2001 (at [20]). The sentences for those offences expired in 2016. Although the sentencing judge accepted that it was necessary to "consider the effect of sentencing the offender in relation to all three episodes of offending at about the same time" (at [47]), it was held that his Honour erred in not addressing how they were to be considered (at [51] per R A Hulme J with whom Hoeben CJ at CL and Davies J agreed). In particular, it was held that the sentencing judge erred by not addressing a question derived from Mill (at 66) that "what would likely have been the effective head sentence imposed if the applicant had been sentenced at the one time for the three sets of aggravated sexual assaults against the three victims" (at [50]).
4. In Porter, R A Hulme J described the error of the sentencing judge as follows (at [54]): "In any event, the preponderance of authority supports the proposition that totality is a relevant matter for a sentencing judge to consider in a case such as this. There is, as such, a lack of reasoning in the judgment of the sentencing judge on this issue, with his only apparent response to the issue appearing to be confined, for some unstated reason, to the amelioration of the non-parole period. The contention by the Crown that he must have also reduced the overall sentence from what it otherwise would have been is, because of the absence of reasons, speculative." (Emphasis in original)
5. I take his Honour's reference to a "case such as this" to be a reference to a case where, on the facts, the totality principle was clearly engaged by the similarity in the relevant offences and their closeness in time.
6. In Porter, when it came to resentencing his Honour noted that, unlike Mill (and R v Todd [1982] 2 NSWLR 517) where the delay in sentencing was caused by factors beyond the offender's control, in this case the delay was "largely attributable to the psychological trauma the applicant caused the victim" (at [68]). His Honour answered the question noted at [16] above by concluding that the offender "would likely have received a further sentence for the offences in question that would have been accumulated, substantially or completely, upon the other sentences" and "he would likely have received a longer sentence in respect of the offences committed last in time" (at [76]). His Honour concluded that "if the applicant had been sentenced for all three of these terrible sexual assaults at the one time, the present incident would have warranted a significant extension upon the term that would otherwise have been imposed for the other incidents" (at [77]), although in determining the final sentence his Honour still had "regard" to the sentence he would have received if all the offences had been dealt with together (at [91]).
7. The resentencing exercise undertaken in Porter illustrates the "artificiality", or at least the difficult countervailing factors that must be considered, in applying the Mill approach in the circumstances where the sentence for the earlier offences has expired (WAP v R [2017] NSWCCA 212 at [97] per Johnson J). On the one hand the application of totality tends to result in a reduction of the overall time an offender will spend in custody for a related sequence of offending. On the other hand, undertaking a hypothetical sentencing exercise that considers all of the offending together may warrant the adoption of a far more adverse view of the offences and the offender. For example, considered together the offences may suggest that, contrary to the view of the sentencing judge who first dealt with the offender, the offences were not isolated or aberrant and the offender represents a real danger to the community.
8. In the context of sexual offending a further complicating factor is the enactment of s 25AA of the Sentencing Act with effect from 31 August 2018. Section 25AA obliges the Court when sentencing a child sexual offender after that date to apply the "sentencing patterns and practices at the time of sentencing" even if the offence was committed before the commencement of the provision (and in some cases long before) (see R v Cattell [2019] NSWCCA 297 at [150-152] per Price J). This gives rise to a potential disparity between the sentencing approach applied in the past and that which must be applied in the present. In this case, counsel for the applicant, Mr McGorey, submitted that the enactment of s 25AA does not deny the application of Mill (and Porter) but simply makes their application more difficult. He contended that in this case s 25AA does not in fact create any such discrepancy because the sentences for the 2010 offences were imposed in 2012 and there was little, if any, difference between the "sentencing patterns and practices" for such offences then and now. I accept both of those submissions. The question of exactly how s 25AA is to be applied where the discrepancy is starker remains to be determined. On its face, it would appear to mean that the question posed by Mill (and rephrased in Porter) is to be generally answered by reference to s 25AA; that is by asking what would have been the effective head sentence (and non-parole period) if the offender had been sentenced now for all of the offences at the one time. Further, the greater discrepancy between the sentencing practice applied when the offender was previously sentenced and the present the lesser utility in this exercise.
9. In Cunningham v R [2020] NSWCCA 287 ("Cunningham") the offender was convicted of sexual offences committed on a young girl between 1995 and 1997. He was sentenced in January 2020. The sentencing judge noted that he was sentenced in 1998 for indecent assaults on the same victim and other girls "over the same period of time" (at [13]). He was also sentenced in 2005 for further child sexual assaults committed between 2002 and 2003 (at [16]). Hoeben CJ at CL (with whom Harrison and Bellew JJ agreed) described the 2002 and 2003 offences as being in "no way temporally related" to the offences that were the subject of sentencing in 1998 and found they represented "an entirely separate episode of offending separate in time by a number of years" (at [31]). Although the sentencing judge took into account the 2002 and 2003 offences, Hoeben CJ at CL noted "they would have little impact on … sentencing in terms of totality" (at [34]).
10. In this case no submission was made to the sentencing judge that any regard should be had to the sentence imposed for the 2010 offences in terms of totality. Not surprisingly, in those circumstances his Honour did not address totality in relation to those offences although, as set out above, his Honour noted a concession by the applicant's counsel that that offending "denies him any basis for leniency" and precludes a finding that the offences the subject of this application "was an aberration".
11. In Zreika v R [2012] NSWCCA 44 at [81]-[82] ("Zreika"), Johnson J observed that the "Court will not lightly entertain arguments that could have been put, but were not advanced on the plea" although this Court can and will "correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance" such as where the material before the sentencing judge "raised a factor which should unequivocally operate in the offender's favour on sentence".
12. Unlike Porter, in this case where no submission whatsoever on this topic was made to the sentencing judge and it was not addressed at all, I do not consider that any per se error arises from the failure of the sentencing judge to ask the question posed in Mill and rephrased in Porter. That said, and consistent with Zreika, I accept that, even in the absence of such a submission, if the material before the sentencing judge "unequivocally operate[d]" to warrant an amelioration of the offender's effective time in custody on account of totality considerations because of earlier sentences imposed on the offender then this Court should intervene to rectify the injustice. However, similarly to Cunningham, I consider that the 2007 offences were "entirely separate" to the 2010 offences. They were separated by two to three years and involved different victims procured by the applicant in different circumstances. Mr McGorey contended that the offending was similar and that is borne out by the Crown's reliance on the conduct the subject of the 2010 offences as tendency evidence supporting its case on the 2007 offences. The relevant tendency the Crown relied on was the tendency of the applicant "to have a sexual interest in pre-pubescent girls" and to act on that sexual interest. The demonstration of that tendency in relation to his conduct towards pre-pubescent girls some three years later, does not make that conduct part of the same series of offences or episode of criminality as the 2007 offences.
13. In the absence of any submission on this topic being put to the sentencing judge, I am not satisfied that this ground is made out.
14. I would reject ground 1.

Ground 2: Special Circumstances

1. Ground 2 of the application contends that the "sentencing judge erred in determining that a 'special circumstances' finding not be made".
2. In R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [73] ("Simpson"), Spigelman CJ characterised the process of making a finding of special circumstances as being "first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence". His Honour added that "there are well known restraints on an appellate court from interfering with decisions of this character" and noted that "as a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive".
3. In this case there is no dispute about the facts that were relied on by the applicant as said to support a finding of special circumstances. The applicant's challenge concerns the evaluative aspect of his Honour's finding. It follows from Simpson, that the challenge is governed by House v The King (1936) 55 CLR 499 ("House"; see Bell v R [2019] NSWCCA 271 at [2]). Neither the written nor the oral submissions in support of this ground identified any error in his Honour's process of reasoning set out above. Instead, it was simply contended that his Honour should have made a finding of special circumstances by reason of the matters that his Honour recounted. In effect, that amounts to a contention that his Honour's rejection of the submission was "unreasonable or plainly unjust" (House at 505).
4. The very width of the combination of circumstances that can amount to special circumstances and the latitude afforded to sentencing judges at first instance to make that finding has, as a corollary, the proposition that it is that much harder to demonstrate this limb of House in relation to the failure to make such a finding. In this case I accept that the various matters relied on, especially the advanced age of the applicant on the expiry of his sentence (80) meant that it was certainly open to his Honour to find special circumstances. However, I do not accept that his Honour was compelled to make that finding.
5. I would reject ground 2.

Proposed Orders

1. I propose the following orders: (1) Leave to appeal be granted. (2) Appeal dismissed.
2. DAVIES J: I agree with Beech-Jones CJ at CL.
3. BELLEW J: I agree with Beech-Jones CJ at CL.

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