Horne v R

Court of Criminal Appeal (NSW)|2023-10-25|Before: Ward ACJ, Fagan J, Sweeney J, Sweeney JJ

HEADNOTE [This headnote is not to be read as part of the judgment] On 26 May 2022 the applicant was found guilty by a jury on two counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW), and one count of indecent assault contrary to s 61L. All three offences were committed in 2016 in a single episode at the home of the victim, a former friend of the applicant, while she was unconscious. Police became aware of the offences in August 2020 as a result of a search of the applicant's residence where a USB was seized, upon which was a 7½ minute video recording of the acts. The applicant was aged about 42 years at the date of the offences and 48 years at the date of sentencing in 2022. At the sentence hearing a psychiatrist's report was tendered, that included a history given by the applicant of childhood sexual abuse at the hands of his older brother when he was aged nine to eleven. The psychiatrist's report stated that this abuse had been disclosed to Ms Samowitz, clinical psychologist, who had been consulted by the applicant from late 2019 to August 2020, before he was charged with the offences. In the course of submissions, the sentencing judge expressed reservations about accepting that the abuse had occurred, given the absence of evidence from the applicant, the absence of Ms Samowitz's notes, the applicant's denial of any childhood abuse when providing his history to another psychologist who had prepared reports in 2007 and in 2012 and the absence of any reference to such abuse in a letter to the court from the applicant's parents. To address these reservations, counsel for the applicant informed his Honour that Ms Samowitz's notes could be made available after the sentence hearing had concluded. Counsel did not pursue that course. The sentencing judge proceeded to sentence on the basis that no weight should be given to the allegations of childhood sexual abuse by the applicant's brother. An aggregate sentence of 5 years and 3 months' imprisonment with a non-parole period of 3 years and 4 months was imposed. The sole ground of appeal was that a miscarriage of justice was occasioned by the failure of the applicant's legal representatives to tender the notes of Ms Samowitz. The Court held (Ward ACJ, Fagan and Sweeney JJ) granting leave to appeal against sentence but dismissing the appeal:

JUDGMENT

THE COURT: The applicant seeks leave to appeal against an aggregate sentence imposed upon him on 26 May 2022 by his Honour Judge Hatzistergos, following his trial by jury in mid-December 2021. The applicant was found guilty on two counts of sexual intercourse without consent, knowing that the victim was not consenting, contrary to s 61I of the Crimes Act 1900 (NSW) and one count of indecent assault contrary to s 61L. All three offences were committed in a single episode when the victim was unconscious and unable to consent.
The offending was discovered when a search of the applicant's residential apartment on 18 August 2020 produced a USB storage device upon which there was a 7½ minute video recording of the applicant carrying out the relevant acts. The victim was a friend of the applicant who had never knowingly been intimate with him. She was entirely unaware that the offending conduct had taken place. It occurred in her own home. The apparent date of the offences, in 2016, is attributed on the basis of meta data of the video recording. The applicant was aged about 42 years at that time.
His Honour nominated indicative sentences as follows: Count 1: sexual intercourse without consent by digital penetration: 3 years and 6 months with a non-parole period of 2 years and 4 months (maximum penalty under s 61I: 14 years imprisonment with a non-parole period of 7 years). Count 2: indecent assault by touching and kissing the victim's breasts: 12 months (maximum penalty under s 61L: 5 years). Count 3: sexual intercourse without consent by penile vaginal penetration: 4 years and 6 months with a non-parole period of 3 years.
An aggregate sentence was fixed with a term of 5 years and 3 months and a non-parole period of 3 years and 4 months. The sole ground of appeal is as follows: A miscarriage of justice was occasioned by the failure of the applicant's legal representatives to tender the handwritten notes of Jill Samowitz, clinical psychologist.
The applicant submits that Ms Samowitz consulted with the applicant on numerous occasions, for many hours in total, between late-2019 and the date of his arrest, 18 August 2020. From then until sentence was passed on 26 May 2022 the applicant was remanded in custody. For 10 months of that period he served a sentence for breaching reporting conditions that were applicable to him as a person registered under the Child Protection (Offenders Registration) Act 2000 (NSW). The applicant submits that the tender of Ms Samowitz's consultation notes, consisting of 40 pages of handwriting, would have confirmed the applicant's claim that he suffered sexual abuse at the hands of his brother, six years his senior, when the applicant was aged between 9 and 11 years. The applicant submits that that background would have been a material consideration on sentence and that the failure of counsel who represented him in the sentence proceedings to tender Ms Samowitz's notes caused a miscarriage of justice.
The following background circumstances were in evidence before the learned sentencing judge and are relevant to the proposed ground of appeal. The applicant was born in November 1973. At about age 27, in 2001, he commenced a de facto relationship with Ms C, who had two children from an earlier relationship and gave birth to two more children of whom the applicant is the father. In February 2007, when the applicant was 33 years old, he committed two acts of indecency towards Ms C's daughter from her earlier relationship, a girl aged 11 years. On two separate occasions the applicant masturbated in the child's presence.
The applicant was not immediately prosecuted for that misconduct but proceedings were brought during 2007 for orders to prevent him from having access to Ms C's children, including the two children of whom the applicant is the father. From February to August 2007 the applicant undertook counselling by Dr Kamal Touma, a general practitioner who professed expertise as a counsellor. The number of sessions with Dr Touma was variously given in evidence as 12 or 20. Then, Dr Lennings, a clinical psychologist, consulted with the applicant for a total of 2½ hours over three sessions in July and August 2007. Dr Lennings prepared a report dated 14 August 2007 in which he recorded the history provided to him by the applicant. The history included that from the age of 17 or 18, in about 1990-1992, the applicant had developed a habit of masturbating in the presence of others, initially in an obvious manner and later in a concealed manner although in public places.
In his August 2007 report Dr Lennings recorded the following: He reports a good family background. His mother stayed at home until the children were old enough and she has worked in child care for the last 20 years and his father is an accountant. He reports no domestic violence, physical, sexual or emotional abuse at home.
In February 2011 the applicant was charged with two aggravated acts of indecency arising from the incidents of masturbating in the presence of his 11-year-old stepdaughter in February 2007. He pleaded guilty. At the sentence hearing for those matters a revised report of Dr Lennings dated 1 June 2012 was tendered on his behalf. By that date Dr Lennings had undertaken four further consultations with the applicant, for treatment purposes, in August, September and November 2007 and he had seen the applicant on 11 May 2012 to update his history. Dr Lennings' second report repeated the summary statement of the applicant's family background that has been quoted above. In both reports Dr Lennings concluded that the applicant: has had a long-standing paraphilic fetish surrounding masturbatory fantasy in which he would include the physical presence of people in his masturbation.
On 20 July 2012 the applicant was sentenced for the February 2007 acts of indecency. He was ordered to perform 120 hours of community service for one offence and was given a suspended sentence of 12 months for the other. After conviction the applicant was placed on the register maintained under the Child Protection (Offenders Registration) Act. He has remained on that register ever since. As earlier mentioned, the applicant consulted with Ms Samowitz from late-2019 into the first half of 2020. Between 18 January and 13 February 2020 the applicant failed to comply with his reporting obligations as a registered child sex offender. The particulars of breach are not disclosed in the appeal papers. The applicant was charged with the breach on 13 February 2020. The search of his apartment on 18 August 2020, which uncovered the video recording of the offences for which he was sentenced by Hatzistergos DCJ, was carried out by police exercising powers in relation to the applicant as a registered child sex offender. Following the search the applicant was charged with another breach of reporting obligations. Again, the particulars of the breach are not known to the Court.
The sentence proceedings before Hatzistergos DCJ were conducted on 5 May 2022. The material tendered by the Crown included the two reports of Dr Lennings and a Sentencing Assessment Report dated 3 May 2022. The latter report included the following: Family and social circumstances. Mr Horne stated that he has a very close family except for his relationship with his eldest brother, he stated that he suffers from PTSD and anxiety due alleged childhood trauma. History of antisocial behaviour Mr Horne attributed his offending behaviour to his childhood trauma, he stated that he would self-medicate with drugs and alcohol. Attitudes Mr Horne expressed that he felt he had done nothing wrong, verbalising that he would never sexually assault anyone as he knows how it feels to be sexually assaulted. Substance use He reported that he did not see his illicit drug use as an addiction, rather a social thing and when triggered about his childhood.
The applicant tendered on sentence a report of Dr Furst, forensic psychiatrist, dated 14 February 2022. Dr Furst based his opinions upon a document review and an assessment of the applicant by audiovisual link over 80 minutes. The report included the following: He indicated his older brother, Andrew, who was six years his senior, sexually abused him from the time Mr Horne was 9 years of age until he was 11 years. The abuse involved his brother telling him he was "special" and "little" and that he would "take care of him in a special way", but this was not to be discussed with others. He said his brother would wake him up when he was asleep and would play with his genitals. He said Andrew also took him into the shower when he was awake, making him give fellatio to Andrew. The abuse only stopped when his older brother went to live in Newcastle to attend the University of Newcastle. He did not disclose the abuse he suffered to anybody at the time and struggled with those abuse experiences for many years, suppressing memories and not telling anybody. He often felt depressed. He said he wanted to tell his parents but was unable to do so. He stated his childhood victimisation and depression had a negative impact on his de facto relationship, which was between the ages of 27 and 33 years, i.e. between 2001 and 2007. … Mr Horne has apparently attempted suicide on numerous occasions over the years, and has seriously contemplated it on a number of occasions, suggestive of the longer-term effects of his childhood sexual abuse victimisation. … Mr Horne disclosed his childhood sexual abuse to Ms Jill Samowitz, clinical psychologist, which was between the latter months of 2019 and midway through 2020, i.e. just prior to his current period of incarceration in August 2020. He talked to Ms Samowitz about having been sexually assaulted by his brother Andrew. He also disclosed that abuse to his parents, which was very difficult to do. Mr Horne is keen to continue working with Ms Samowitz when released on parole, as he found the psychological work he was doing with her very helpful, including developing greater insight into the impact of his own childhood victimisation on his thoughts, beliefs and self-worth. … Psychological and letter from Ms Samowitz,13/12/19 The notes and letter from Ms Samowitz confirm that Mr Horne engaged in psychological treatment for his anxiety and low mood with efforts to improve his life structure and help him to find employment, stress management was also a focus of treatment. He was noted to be committed and motivated to his treatment/therapy.
The applicant also tendered a letter from his parents dated 17 February 2022. This made no mention of any childhood sexual abuse or trauma suffered by the applicant or of any assertion by the applicant that he had experienced such things. The parents spoke of their very close relationship with the applicant throughout his life.
During oral submissions on sentence the learned judge pointed out that Ms Samowitz's notes and report of 13 December 2019, as referred to by Dr Furst, were not in evidence. His Honour expressed the following reservations regarding the hearsay information about childhood sexual abuse of the applicant, as follows: I'm just wondering how much confidence I can have in any of this account when the source of it appears to be something that was said to Ms Samowitz.
The sentencing judge also pointed out the following: [The claimed childhood abuse is] not mentioned to the parents. He hasn't given evidence. There's the material of [Ms Samowitz] which appears to occur […] sometime after the recording was made if the recording was in 2016 […] and then he's reported this matter [to Ms Samowitz] in the latter months of 2019 and midway through 2020 just prior to his arrest on 18 August 2020.
Counsel who appeared for the applicant before the sentencing judge (not being counsel who appeared in this Court) reminded his Honour that the consultations with Ms Samowitz had taken place before the video recording was found in the applicant's apartment and when he would not have anticipated that he would face charges based upon the recording. The point of the submission was that the applicant's statements to Ms Samowitz should not be regarded as self-serving with respect to the sentencing exercise. Nevertheless, his Honour made clear his lack of satisfaction that the alleged childhood abuse had occurred, given that it had not been substantiated by evidence from the applicant on sentence, that it was contrary to his explicit disclaimer to Dr Lennings of any childhood abuse and that the parents had made no mention of it in their letter to the Court notwithstanding that the applicant told Dr Furst he had disclosed the events to his parents "which was very difficult to do".
Counsel appearing for the applicant in the sentence proceedings informed his Honour that Ms Samowitz's notes were available, that they could be provided to the Crown after the conclusion of the oral hearing and could thereafter be provided to the Court. His Honour said, "If you both agree on it then I can proceed on that basis". Counsel did not pursue the opportunity to provide Ms Samowitz's notes to the judge.
His Honour dealt with the subject of the alleged childhood abuse in the following paragraphs of his remarks on sentence: [63] The Crown submitted that in the absence of evidence, the Court would regard the assertion that the offender was sexually abused in boyhood with great caution without evidence from the offender considering the absence of corroboration from his parents and the fact that it may be a convenient invention to his clinical psychologist. Specifically, it drew attention to the absence of the notes of the clinical psychologist in this regard. [64] The offender's parents' letter to the Court dated 17 February 2022 makes no reference to the alleged abuse that is recorded by Dr Furst. The clinical notes of Ms Samowitz have not been tendered. Dr Lennings in his report records seeing the offender in multiple treatment sessions in 2007 as well as speaking to Dr Kamal Touma who the offender consulted for an extended number of therapy sessions. Dr Lennings also perused other records relating to the offender before conducting an updated interview in 2012. Yet nowhere does it appear that the alleged abuse is documented. To the contrary, the offender reported a good family background with no domestic violence, physical, sexual or emotional abuse at home. [65] The offender has not been called to give evidence. Overall, I am not satisfied that the allegations of sexual abuse by the offender's brother should be given any weight.
In support of his ground of appeal the applicant has referred to two authorities concerning the principles to be applied in this Court when there has been a failure to tender some item of evidence in sentence proceedings. First, in John Wayne Tsiakas v R [2015] NSWCCA 187 the following was said at [42]-[44] (Beech-Jones J, Leeming JA and Johnson J agreeing) (some citations omitted): [42] In some circumstances the incompetence of counsel acting for an accused person at a trial may be of such a kind that it gives rise to a miscarriage of justice justifying intervention by this Court. In such cases what needs to be considered is what ultimately did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd v The Queen [2006] HCA 9 at [24] per Gummow and Hayne JJ; TKWJ v The Queen (2012) 212 CLR 124; [2012] HCA 46 at [31]-[33] per Gaudron J, at [79] and [97] per McHugh J, at [101] per Gummow J and at [103]-[108] per Hayne J). [43] The demonstration of a "miscarriage of justice" is the third basis for setting aside a conviction referred to in s 6(1) of the Criminal Appeal Act 1912. Even though it is not a statutory basis for interfering with the exercise of a sentencing discretion, a number of decisions of this Court have adopted that test and the associated discussion in Nudd v The Queen and the other cases on the same topic as applicable to applications for leave to appeal from sentence […]. In effect, these decisions appear to treat a conclusion that a miscarriage of justice of this kind was occasioned by the conduct of an offender's legal representative as equivalent to a finding that there was a denial of procedural fairness. The affording of procedural fairness is an "immutable characteristic" of a court, including a court exercising a discretion to impose a sentence (Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [194] per Gageler J). The establishment of a breach of procedural fairness in the course of sentencing proceedings is a basis for interfering with the exercise of the power to impose a sentence. [44] With both appeals against conviction and sentences, it is not sufficient to warrant intervention to simply point to some failing, even a gross failing, of the legal representative who appeared during the sentence proceedings. In conviction appeals, where incompetence to the relevant standard is demonstrated, the Court considers whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd v The Queen at [24]). In sentence appeals an analogous principle applies. Thus this Court has considered whether "compelling material was available but not tendered, or its significance not appreciated" (Pym v R [2014] NSWCCA 182 at [75] per Fullerton J, with Hoeben CJ at CL and Price J agreeing), whether material of "significance" was not presented (R v Abbott (1985) 17 A Crim R 355, 356 per Street CJ) or whether the sentencing court was deprived of a consideration of an offender's circumstances (Munro v R [2006] NSWCCA 350 at [25] per Beazley JA). However, it has also been said that "it will be a very rare case" that a miscarriage of justice will have occurred "simply because of a defect in submissions made to a sentencing judge by defence counsel" (Puan v R [2009] NSWCCA 194 at [55] per Howie J). Again these observations reflect the approach adopted with complaints of a denial of procedural fairness namely that "[f]airness is not an abstract concept. [it] is essentially practical" and that "the concern of the law is to avoid practical injustice" (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ).
Secondly, the applicant relied upon Rossall v R [2021] NSWCCA 200 in which Garling J (Bathurst CJ and Rothman J agreeing) cited the above passages and added the following: [87] But the mere fact that more fulsome material could have been presented to the Judge hearing submissions on the sentence, is not of itself and without more, sufficient to result in a successful appeal. That is because this Court is a court of error, and as a matter of principle, an appellant is not entitled to simply have this court re-sentence them on the basis that a second attempt at the presentation of evidence may produce a more favourable outcome.
In an endeavour to demonstrate miscarriage of justice, the applicant has submitted to this Court the following matters concerning the Crown's submissions is in the sentence proceedings (emphasis added): [They] carried the implicit assertion that there was never any disclosure [of the applicant's alleged childhood sexual abuse] to Ms Samowitz. The notes establish, unequivocally, that there was. Another component of the […] Crown submission was that the absence of any reference to the abuse in the parents' letter suggested the applicant never disclosed the abuse to his parents. Again, the notes include numerous descriptions of disclosure to the parents. Moreover, those descriptions provided a persuasive explanation for the absence of any reference to the abuse in the letter: the parents were unwilling to believe or address the allegations … As for what the Crown described as a "denial" to Dr Lennings, the content of the notes included recognised reasons for child victims delaying disclosure of sexual abuse …
The repeated use of the word "disclosure" in the above extracts and in numerous other places throughout the applicant's submissions involves an assumption that the applicant did in fact suffer childhood sexual abuse and that the issue upon which the learned judge needed to be satisfied was whether the applicant had "disclosed" that aspect of his background prior to his consultations with Dr Furst in 2022. However, the transcript of the sentence proceedings makes clear that the learned judge was not satisfied, merely on the basis that the applicant had told Dr Furst he had been sexually abused or on the basis that Ms Samowitz's notes had been given to the doctor, that such abuse had in fact taken place. His Honour indicated that his lack of confidence in this hearsay information arose not just because he had not seen the notes but also because (1) Dr Lennings had not been told of the alleged abuse in 2007 or in 2012 and (2) Dr Lennings had been given an explicitly contrary history of "a good family background" and "no domestic violence, physical, sexual or emotional abuse at home" and (3) the parents' letter to the Court made no mention of any such history despite Dr Furst having been informed that they had been told about it.
The applicant's submissions in this Court continue as follows (emphasis added): The absence of Ms Samowitz's notes should be seen as decisive in the applicant's sexual abuse being disregarded for the purposes of his sentencing. … If the notes were in evidence, the learned sentencing judge would not only have been compelled to accept that prior disclosure had been made to both Ms Samowitz and the applicant's parents but he would also have had the benefit of the detailed, arresting, record of the (repeated) disclosures. The detail in, and tenor of, the notes provided persuasive evidence of the abuse the applicant described to Dr Furst, despite the absence of evidence from the applicant that the sentencing hearing.
Again, the use of the word "disclosure" betrays an unjustified assumption that if the learned judge could be satisfied that the applicant told Ms Samowitz about the alleged childhood abuse then he would have to have been satisfied that it occurred. The final sentence of the above passage is not accepted. Tender of Ms Samowitz's notes would do no more than add another piece of hearsay assertion to the pieces that were already before the judge in Dr Furst's report and in the Sentencing Assessment Report. The notes would take the earliest date of the applicant's assertions on this subject back from 2022 to late 2019. That would have done nothing to address the learned judge's reservations arising from Dr Lennings' reports and from the parents' letter. Those sources of reservation could only have been addressed by calling the applicant, not by adding more hearsay. It has not been suggested that a miscarriage of justice arose from counsel electing not to call the applicant. Nothing less would have made any difference.
Dr Furst came to the following conclusions in his report of 14 February 2022: Mr Horne's primary psychological and psychiatric problems relate to a reported history of childhood sexual abuse in his late childhood/early teens; internalisation and suppression of those abuse experience; a paraphilic disorder that emerged when he was about 17 or 18 years of age and persisted into his 30s, characterised by obsessive masturbation in public in the presence of unsuspecting people who apparently did not realise what he was doing and/or were asleep and likely somnophilia; substance abuse including regular use of cocaine and methylamphetamines; and a more recent history of unemployment, stress and anxiety. Although Mr Horne denies that the offending in question before the Court was non-consensual, the behaviour recorded in the video is consistent with him taking advantage of a female friend who was likely asleep, heavily intoxicated and/or semiconscious and would fit with somnophilia, a condition that would also appear to account for his behaviour of masturbating in front of his stepdaughter … when she was asleep in the early 2000s.
The sentencing judge quoted in full the first of the above paragraphs at [60] of his remarks on sentence. His Honour then reviewed the evidence concerning the "reported history of childhood sexual abuse" (in the paragraphs quoted at [18] above) and concluded that the allegations of such abuse should not be given any weight. However, this did not cause his Honour to reject Dr Furst's diagnoses. On the contrary, his Honour commenced [72] of his remarks with these words: [72] Apart from the alleged childhood sexual abuse, Dr Furst noted the offender's primary psychological and psychiatric problems relate to a paraphilic disorder … and his Honour then set out substantially the whole of both of the above paragraphs of the doctor's report that contain his diagnoses. Further, at [73] the learned judge noted Dr Furst's concurrence with Dr Lennings' diagnosis of paraphilia. It is clear from what follows in the remarks that his Honour accepted Dr Furst's opinion as to the applicant's psychiatric and psychological condition.
The applicant submits that, as a result of the judge giving no weight to the second-hand reports of alleged childhood abuse, his case on sentence was materially adversely affected. He submits that without acceptance by the judge that the abuse had occurred, Dr Furst's opinion that his "primary psychological and psychiatric problems relate to a reported history of childhood sexual abuse" was undermined. We reject that submission. The question of what, in the applicant's background, had caused his psychiatric or psychological disorders was of negligible consequence for the purposes of sentencing. What mattered was the medical fact, which his Honour found proved to his satisfaction, that the applicant suffered from the disorders identified by Dr Furst.
The sentencing judge took Dr Furst's diagnoses into account so far as counsel who then appeared for the applicant asked him to do so. Counsel did not suggest any causal relationship between the diagnosed disorders and the commission of the offences. The following was submitted: COUNSEL: Ultimately, your Honour, the report of Dr Furst does not go to some mental health issue with a causal connection to the commission of the offence. It doesn't go to a finding in relation to the considerations in De La Rosa but it's there to provide a background in relation to the offender and it's my submission that it would be taken into account in the general subjective mix in the instinctive synthesis of sentencing. HIS HONOUR: This is the mental health aspects? COUNSEL: Yes, and his general subjective case. The other materials go to his physical health and, again, it's acknowledged in the written submissions it's not said that those medical needs are not being met whilst he's in custody, and then your Honour will see from the other materials that he retains the support of his parents.
Dr Furst's report included the following: [His] profile on the Personality Assessment Inventory and his clinical profile when assessed by Dr Lennings in 2007 and 2012 and by myself on 24 January 2022 goes against the presence of any major mental illness or personality disorder that would significantly impact on his time in custody. The learned judge accepted that opinion at [85]. His Honour also accepted Dr Furst's assessment that the applicant's risk of future offending was no more than average.
In summary, it is not shown that the tender of Ms Samowitz's notes would have caused the sentencing judge to accept as a fact that the applicant suffered childhood sexual abuse. Nor would that tender have increased the chances of a finding to that effect and in any event a finding of childhood sexual abuse was not necessary to Dr Furst's diagnostic opinion, which the judge accepted. Such a finding was not significant in any other way to the exercise of the sentencing discretion. No miscarriage of justice occurred.

Orders

For these reasons, the orders of the Court are: 1. Grant leave to appeal. 2. Appeal dismissed.

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