Hordern v R

The Sole Ground of Appeal

1. The sole ground of appeal contends that the aggregate sentence imposed on the Applicant was manifestly excessive.

Facts of Offences

1. The sentencing Judge made factual findings concerning the offences from which the following is drawn.
2. The offences took place when the victim visited her grandparents who lived in South Western Sydney. The Applicant lived at those premises with the victim's grandparents, who were his own parents. The victim's birthday fell in February so that she was either 14 or 15 years of age at the time of the offences between 1 January and 12 March 2014. Count 4 - Offence Under s.66C(3) Crimes Act 1900
3. The first offence of which the Applicant was convicted (Count 4) took place when the victim was watching a movie in the Applicant's room. The Applicant came into the room, removed the victim's pants and had penile/vaginal intercourse with her before ejaculating into a piece of clothing. The victim recalled that during this incident, it hurt. Afterwards, when she went to the bathroom, the victim's vagina "hurt a lot". Count 5 - A Further s.66C(3) Offence
4. Count 5 also involved penile/vaginal intercourse. In describing this offence, the victim said that "It hurt more because he went like a lot harder and a lot deeper". She said that after the assault had finished, the Applicant had ejaculated into some clothing. She went to the bathroom where she was bleeding a lot. Count 6 - A Further s.66C(3) Offence
5. Count 6 was an offence of digital penetration of the victim's vagina by the Applicant's fingers. This occurred a short time only after Count 5 in circumstances where the victim was crying, could not breathe properly and fell to the floor. The victim said that she could hear everything and feel everything, but she could not open her eyes and could not say anything. She described being in pain. The Applicant left the victim on the floor and called his girlfriend who was also in the house. The Applicant spoke to the victim and then tilted her head saying to her "If you don't wake up, I'm going to finger you". At that point, the Applicant placed his fingers in the victim's vagina and clenched them. The victim described herself as being semi-conscious. When she regained consciousness, the Applicant said "Don't ever do that again, you, like, scared the hell out of me". Count 7 - A Further s.66C(3) Offence
6. The offence in Count 7 took place about 10 minutes after the offence in Count 6. The victim returned to her own bed in her grandparents' house. The Applicant came into the victim's room and removed the sheets from the victim. He took off her pants and then had penile/vaginal intercourse with her. Count 9 - A Further s.66C(3) Offence
7. Count 9 involved a further incident of digital penetration. About one hour after a discussion took place between the Applicant and the victim as to whether she was pregnant, the Applicant came into her room, kissed her on the lips, removed the sheets and put his hand under her clothes and placed his fingers inside her vagina. The victim tried to roll over and shrug it off and the Applicant left the room. Count 10 - A Further s.66C(3) Offence
8. The offence in Count 10 occurred on an occasion in an upstairs bathroom or shower recess in the grandparents' house. The Applicant came into the shower recess whilst the victim was in the shower and had penile/vaginal intercourse with her. The Applicant penetrated the victim slightly with his penis as he kept half of his body out of the shower to accommodate an arm injury which he had at that time. Count 11 - A Further s.66C(3) Offence
9. The offence in Count 11 occurred in the Applicant's bedroom. The victim was lying on her stomach on the Applicant's bed because her own bed was hard and his was comfortable. The Applicant came into the room and told the victim to remain in that position. He then had penile/vaginal intercourse with her from behind. Count 12 - The s.61M(2) Offence
10. The offence in Count 12 involved an attempt by the Applicant on another occasion to push the victim's head onto his penis with the aim of her performing oral sex upon him.
11. In concluding his narrative of the offences, the sentencing Judge observed (ROS10): "The written text communications between the victim and her uncle which were tendered were in my view consistent with the nature of the relationship which the victim described in the course of her evidence. They revealed the true nature of the relationship which had developed between the 31 year old uncle and his 15 year old niece, such that they provided support and corroboration for the accounts which she had described. I am, consistent with the verdicts by the jury, satisfied beyond reasonable doubt that each of the incidents as described above took place." Acquittals on Other Counts
12. The Applicant was found not guilty by the jury of three counts of indecent assault under s.61M(2) Crimes Act 1900 said to have been committed in 2011 (Counts 1-3). In addition, the Applicant was found not guilty on Count 8, a charge of having sexual intercourse with the victim knowing she was not consenting under s.61J(1) Crimes Act 1900. With respect to this incident, the jury convicted the Applicant on the alternative charge under s.66C(3) (Count 9). His Honour referred in the sentencing remarks to the acquittals on the three counts alleging offences in 2011 (ROS4): "It is not a necessary part of the sentencing process for me to endeavour to determine why the jury returned verdicts of not guilty on the first three counts. However, unlike the later allegations of events in 2014, there were no SMS messages between the victim and her uncle, the offender, nor any diary entries, as there were in relation to later allegations, which might have been viewed as confirming or corroborating the account given by her at such a young age."
13. As a consequence of the differing verdicts, his Honour said (ROS4-5): "In determining the facts for the purpose of assessing the objective seriousness of the offences in respect of which the offender has been found guilty it may well be that there was some aspect of grooming, as that term was used by the complainant, with respect to earlier claimed episodes. Whether or not there were any physical acts consistent with such a description is not, however, a matter in respect of which I could be satisfied beyond reasonable doubt. Accordingly, I put to one side the account given by the victim of what she asserted had taken place during 2011."

The Applicant's Subjective Circumstances

1. The Applicant had no prior criminal history at the time of the offences.
2. The Applicant was arrested and charged with these matters on 16 June 2015. He remained in custody bail refused until bail was granted on 12 August 2015. Whilst on bail for the present matters, the Applicant was sentenced in the Bankstown Local Court on 22 February 2017 for stealing property as a clerk or servant (a sum exceeding $24,000.00) in May-June 2016. The Applicant was sentenced to imprisonment for nine months with a non-parole period of six months. Upon his release on parole on 23 February 2017, he was once again subject to bail with respect to the present matters.
3. A presentence report was tendered at the sentencing hearing. Accompanying the presentence report was the report of a paper review undertaken by Catherine Cheung, psychologist with Corrections NSW, concerning the Applicant. Ms Cheung did not interview the Applicant for the purpose of her report.
4. Also tendered were a report of Mr Philip Gorrell, psychologist, dated 11 May 2017 and a report dated 27 September 2017 of Dr Katerina Lagios from the Justice Health and Forensic Mental Health Network. The report of Dr Lagios related to the management in custody of the Applicant who was diagnosed as a child with Von Hippel-Lindau ("VHL") disease, an inherited disorder causing multiple malignant and non-malignant tumours of the body.
5. The Applicant left school after Year 10 and was employed for a time as a factory worker. He undertook TAFE studies and worked for a number of years in an administrative capacity in a club before gaining employment with a telecommunications company and then a mobile telephone company. The Applicant told Mr Gorrell that he had used illicit drugs recreationally since his early 20s.
6. The sentencing Judge referred to the Applicant's medical condition (ROS16): "The offender himself was diagnosed with Von Hippel-Lindau Disease at the age of six. That disease, also described as Von Hippel-Lindau Syndrome, is described as a rare genetic disorder characterised by visceral cysts and benign tumours in multiple organ systems, and has subsequent potential for malignant change. According to the Medscope website, which has been extracted and included in the psychological report, the average expectancy of affected individuals is 49 years."
7. His Honour referred to evidence concerning the management of the Applicant's medical condition whilst in custody (ROS18-20): "With respect to the offender's Von Hippel-Lindau Syndrome, it is being provided for with medication whilst he is in custody. The psychologist's report indicates an opinion by that practitioner as to the likelihood of him receiving better treatment for his Von Hippel-Lindau Disease in the general community, rather than being in custody. Mr Gorrell expressed an opinion, which he described as a suspicion, that the offender's life expectancy will be further reduced due to not being able to easily access comprehensive and intensive medical treatment in custody. He further expressed the view that the offender was suffering from depression which needed to be addressed, as did his behaviour and the offending. In addition to the material contained in the psychologist's report, the Court has received a medical report dated 27 September 2017 from Dr Katerina Lagios from Justice Health. That report confirms the diagnosis of Von Hippel-Lindau Disease and describes the results of the most recent annual screening conducted by Justice Health. A number of described lesions were identified in various parts of the offender's body, including his pelvis, left femur and spine, and also the renal and adrenal masses. Dr Lagios reported: 'The offender has not been symptomatic with respect to the above lesions and the multi-disciplinary team consensus is to observe and treat conservatively.' The conservative management thus far has included the provision of a nutrition shake, as well as simple analgesia and neuropathic pain medication. The offender is also seen by a physiotherapist. Justice Health notes that he will need to continue with annual VHL screening protocols and have management of any new symptoms."
8. After considering the relevant legal principles, his Honour expressed the following conclusion concerning the relevance of the Applicant's medical condition to sentence (ROS22): "In the present matter, I have taken into account such medical material as has been placed before the Court and the circumstances of the treatment which is being made available to the offender, as well as his apparent current state. The stress of the offender's medical condition whilst he is in custody is a factor which I take into account. It is difficult to assess whether his access to medical treatment externally is necessarily better than it is whilst he is in custody. Indeed, prior to bail being refused, he had failed to attend on various medical appointments and, on one view of things, he might be receiving closer attention to his ongoing condition whilst he is in custody than before his incarceration. However, the likely limitation to his lifespan and the uncertainty with respect to his condition and its potential for deterioration with regard to the tumours which he currently possesses entitle him to a degree of allowance in the determination of a proper sentence."

Some Other Findings by the Sentencing Judge

1. With respect to objective gravity, his Honour found that (ROS14-15): 1. Counts 4 and 5 fell above the mid-range of seriousness; 2. Count 6 fell within the broad mid-range of seriousness; 3. Counts 7, 9, 10 and 11 fell either at or just below the mid-range of seriousness; 4. Count 12 fell below the mid-range of seriousness.
2. His Honour had regard to sentencing statistics and a number of sentencing decisions with respect to offences under s.66C(3) Crimes Act 1900 (ROS23-24).
3. His Honour took into account the need for general deterrence and specific deterrence, the breach of trust involved and the comparative difference between the age of the Applicant and the victim for the purpose of determining sentence. His Honour then proceeded to specify indicative sentences for the offences. His Honour took into account the principles of totality and proportionality and imposed the aggregate sentence referred to earlier in this judgment. A finding of special circumstances was made with reference being made to the diagnosis of VHL disease in that respect.

The Sole Ground of Appeal - the Aggregate Sentence was Manifestly Excessive

1. Mr Little, counsel for the Applicant, did not contend that the sentencing Judge erred in any particular respect in the sentencing remarks. Rather, counsel submitted that the aggregate sentence was manifestly excessive in all the circumstances of the case. He pointed to the following features in support of this submission: 1. the offences occurred within a limited period of time between 1 January and 12 March 2014 at the grandparents' home; 2. there was no grooming of the victim with respect to the 2014 offences (in circumstances where his Honour put to one side the victim's account of events in 2011 given the jury verdicts on those counts); 3. the findings made by the sentencing Judge on the objective seriousness of the offending; 4. the Applicant had no prior criminal history as at 2014; 5. the assessment of Ms Cheung, psychologist, from Corrections NSW that the Applicant was a medium-to-low risk of sexual reoffending; and 6. the Applicant's lowered life expectancy of 49 years because of VHL disease and the opinion of Mr Gorrell concerning the Applicant's depression.
2. Whilst acknowledging the caution required with respect to the use of sentencing statistics (Why v R [2017] NSWCCA 101), counsel for the Applicant submitted that the sentencing statistics for s.66C(3) offences provided some support for the Applicant's claim of manifest excess when regard was had to the particular factors in the Applicant's case summarised in the preceding paragraph.
3. The written submissions for the Applicant did not refer to any other sentencing decisions. Rather, reference was made to bare sentencing statistics accompanied by a submission that the Applicant's aggregate sentence was a heavy one for s.66C(3) offences.
4. The Crown submitted that the aggregate sentence was not manifestly excessive. It was submitted that the findings of objective seriousness with respect to the offences were appropriate and served to support the aggregate sentence ultimately fixed. The Crown submitted that the offences were committed when the victim was staying at her grandparents' house in circumstances where she was entitled to feel a sense of safety and security. It was submitted that the offences were restricted in time effectively because of the limited duration of the victim's stay at her grandparents' home.
5. The Crown submitted that the sentencing Judge had regard to the subjective evidence including the Applicant's lowered life expectancy and submissions concerning sentencing statistics made in the District Court.
6. The Crown submitted that the Applicant's reliance on statistics was unhelpful and served to demonstrate why this Court had been critical of this approach in the past: Radi v R [2013] NSWCCA 278 at [29].
7. It was submitted that it had not been demonstrated that the aggregate sentence imposed upon the Applicant was unreasonably or plainly unjust so that the ground of appeal ought be rejected.

Decision

1. In Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221, this Court said at [443]: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. * Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. * Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. * It is not to the point that this Court might have exercised the sentencing discretion differently. * There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. * It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
2. The Applicant was to be sentenced for a series of sexual offences committed against his niece whilst she stayed in her grandparents' house where the Applicant also lived. There was a significant age gap between the Applicant (31 years old) and the victim (14-15 years old). No challenge is made to the findings as to the objective seriousness for the various offences, all of which were clearly open to the sentencing Judge. These were serious examples of offences of this type committed on a repeated basis against the victim.
3. As the Applicant proceeded to trial and was convicted, there is, of course, no discount arising from pleas of guilty nor any element of contrition or remorse to be taken into account on sentence.
4. It was open to the sentencing Judge to conclude that the Applicant's conduct towards the victim was "exploitative and predatory" (ROS13). These were repeated offences committed in circumstances where the victim was, at times, in pain and discomfort.
5. His Honour had regard to the victim impact statement tendered on sentence in which the victim described the "deception and manipulation that she perceived as having come from within her own family" (ROS13). The victim described the adverse effects of the offending upon her in her personal and school life and her relationships with other people (ROS13-14). Repeated sexual offences of this type committed by a family member against a teenage girl will have adverse consequences which the sentencing Judge recognised. As the sentencing Judge also recognised, it was necessary that the aggregate sentence have regard to the objective gravity of the offences, the need for specific and general deterrence as well as recognising the harm done to the victim: s.3A Crimes (Sentencing Procedure) Act 1999.
6. His Honour had regard to the Applicant's health issues and evidence concerning management of his health whilst in custody together with evidence of life expectancy. The relevant sentencing principles were summarised helpfully by Beech-Jones J in R v Obeid (No. 12) [2016] NSWSC 1815 at [116]-[120]: "116 The principles relevant to a submission that a penalty should be mitigated on account of health concerns and the relevance of the length of a sentence to a person's life expectancy can be briefly stated as follows. 117 First, in circumstances where illness is relevant to the determination of a sentence, its weight must be assessed in light of 'all the circumstances of the case, and an appropriate balance has to be maintained between the criminality of the offender and any damage to health or shortening of life' (R v Achurch [2011] NSWCCA 186; 216 A Crim R 152, 'Achurch' at [117] per Johnson J citing: R v Sopher (1993) 70 A Crim R 570 at 573; R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at 6-8 [23]-[31]). 118 Second, although the health of an offender is relevant to the type and length of any sanction imposed, generally it will only be a mitigating factor 'when there is evidence to show that there is a serious risk that imprisonment will be a greater burden on an offender, by reason of ill health, or where there is a serious risk that imprisonment will have a grave adverse effect on the offender's health' (R v Badanjak [2004] NSWCCA 395 at [9] per Wood CJ at CL with McClellan AJA and Smart AJ agreeing; R v Smith (1987) 44 SASR 587 at 589; Achurch at [118]). 119 Third, the relative strictness that is applied to a consideration of whether some matter affecting the health of an offender operates as a substantial mitigating factor does not necessarily apply when such matters are considered in combination with other factors such as age in determining whether 'special circumstances' are established for the purposes of s 44(2) of the Sentencing Act (see Griffiths v The Queen (1989) 167 CLR 372 at 379 per Brennan and Dawson JJ; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704). However, double counting of matters affecting the length of the head sentence and matters that might constitute special circumstances must be avoided (R v Fidow [2004] NSWCCA 172 at [18] per Spigelman CJ ('Fidow')). 120 Fourth, an otherwise appropriate sentence of imprisonment should not be reduced on the basis that it is likely to extend to most of the offender's remaining life expectancy (Goebel-McGregor v R [2006] NSWCCA 390 at [128] per James J, with whom Hidden and Hislop JJ agreed; Barton v R [2009] NSWCCA 164 at [22])."
7. In the course of dismissing Mr Obeid's appeal against sentence, the Court of Criminal Appeal in Obeid v R made no criticism of his Honour's summary of these principles.
8. The sentencing statistics relied upon by the Applicant are of very limited use. In Skocic v R [2014] NSWCCA 225, Bellew J (Macfarlan JA and Fullerton J agreeing) said at [19]: "19 The principal submission made on behalf of the applicant was that a conclusion of manifest excess should be reached solely by reference to sentencing statistics. That submission misunderstands, and overstates, the use to which statistical material can be put on sentence. In MLP v R [2014] NSWCCA 183, with the concurrence of Macfarlan JA and Adamson J, I had occasion to make a number of observations (commencing at [41]) regarding this issue. Those observations included the following: (i) consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [48]-[49]. (ii) sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion but stand as a yardstick against which to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 305 ALR 323 at [41]; (iii) the presentation of sentences passed in the form of numerical tables and graphs is of limited use: Hili (supra) at [48]. This is because reference to the lengths of sentences passed says nothing about why the sentences were fixed as they were; (iv) this Court has emphasised the need to adopt a careful approach when asked to have regard to statistics: R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J, Beazley JA (as her Honour then was) and Johnson J agreeing. A similarly careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing. The need to take care in each instance arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another; (v) the fact that a particular sentence is, by reference to statistics, the highest imposed for a single instance of particular offending does not demonstrate that the sentence is unduly harsh. As a matter of common sense, there will always be one sentence which constitutes the longest sentence imposed for particular offending: Jolly v R [2013] NSWCCA 76; (2013) 229 A Crim R 198 at [75]."
9. Since Skocic v R, the High Court of Australia returned to the use of sentencing statistics in The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39. The plurality (French CJ, Keane and Nettle JJ) emphasised (at 559 [28]), amongst other things, that consistency in sentencing involved consistency in the application of relevant principles with consistency not being synonymous with numerical equivalence and with presentation in the form of numerical tables and graphs not being helpful. Bell and Gageler JJ observed (at 565 [47]) that statistical material showing the pattern of past sentences for an offence may serve as a yardstick by which a court assesses a proposed sentence and an appellate court assessed a challenge of manifest inadequacy or manifest excess. Bell and Gageler JJ noted (at 565 [49]) that statistics have a role to play in fostering consistency of sentencing, and in appellate review, provided care is taken to understand the basis upon which they have been compiled.
10. In this case, counsel for the Applicant sought to rely upon bare statistics. Counsel's submissions did not take the Court to the facts of the sentencing decisions to assist an understanding of the outcomes in particular cases. As a result, there was no informed examination of the cases reflected in the statistics. The Applicant's submissions suffer from the same vice as noted by this Court in Hayek v R [2016] NSWCCA 126 at [98], [101].
11. This approach is even more problematic when, as in this case, the sentence under challenge is an aggregate sentence for multiple offences: Why v R at [33]-[34].
12. The Applicant's offending involved multiple offences committed by an older extended family member of the victim in circumstances where she had confided in him about difficulties she had been experiencing. Rather than honour the trust she had placed in him, the Applicant engaged in exploitative and predatory behaviour towards the victim. The more serious offences involved the infliction of pain to the victim. The offences were not spontaneous or isolated.
13. It was necessary for the sentencing Judge, having identified indicative sentences for each offence, to have regard to notional accumulation and totality for the purpose of determining the aggregate sentence of imprisonment. His Honour had regard to relevant considerations in this respect including the Applicant's health issues and life expectancy. It was necessary that the aggregate sentence reflect the repeated pattern of serious offending by the Applicant towards his niece.
14. It has not been demonstrated that the aggregate sentence imposed upon the Applicant was unreasonable or plainly unjust. The sentence imposed was not manifestly excessive.
15. I would reject the sole ground of appeal.

Conclusion

1. I propose the following orders: 1. grant leave to appeal against sentence; 2. appeal against sentence dismissed.
2. FAGAN J: I agree with Johnson J.

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