HUDSON v R

Court of Criminal Appeal (NSW)|2008-04-01|Before: McClellan CJ, James J, Hoeben J, Clellan CJ

CITATION: HUDSON v R [2008] NSWCCA 90

JUDGMENT OF: McClellan CJ at CL at [1], [28], [31]; James J at [2]; Hoeben J at [30]

DECISION: Grant an extension of time for leave to appeal. Grant leave to appeal but dismiss the appeal against sentence.

CATCHWORDS: CRIMINAL LAW - Sentencing - aggravated indecent assault - no question of principle

LEGISLATION CITED: Crimes Act Crimes (Sentencing Procedure) Act

CASES CITED : AIS v Regina [2006] NSWCCA 305 R v Morgan (1993) 70 A Crim R 368

COUNSEL: GIO Rowling (Applicant) S M Kluss (Crown)

SOLICITORS: S O'Connor - Legal Aid Commission (Applicant) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/2972

McCLELLAN CJ at CL JAMES J HOEBEN J

TUESDAY 1 APRIL 2008 HUDSON, Michael Peter v R Judgment 1 McCLELLAN CJ at CL: The court is in a position to deliver judgment today and I ask Mr Justice James to deliver the first judgment.

2 JAMES J: Michael Peter Hudson applied for an extension of time within which to apply for leave to appeal against sentence and for leave to appeal against the sentence imposed on him in the District Court by his Honour Judge Hulme on 4 May 2007 on one charge of committing an aggravated indecent assault on 22 December 2005 on a girl then aged thirteen years, to whom I will refer as "the victim" or "the complainant". The applicant pleaded guilty to the offence.

3 The sentencing judge sentenced the applicant to a term of imprisonment consisting of a head sentence of three years seven months with a non-parole period of two years two months, the sentence to date from 17 August 2006. The sentencing judge backdated the commencement of the sentence to 17 August 2006 to allow for a total period of eight months and eighteen days which the applicant had spent in pre-sentence custody.

4 Under s 61M of the Crimes Act a person who commits an indecent assault in circumstances of aggravation, which include that the victim is under the age of 16 years, is liable to imprisonment for seven years. There is a standard non-parole period of five years. 5 The criminal proceedings against the applicant had a fairly lengthy history. The applicant had originally been charged with five offences against the complainant, including offences of sexual intercourse in circumstances of aggravation. The applicant pleaded not guilty to all of the charges. At a trial in the District Court proceedings the applicant was acquitted on four of the five charges and on the remaining charge, a charge of sexual intercourse in circumstances of aggravation, the jury could not agree. A re-trial of the charge on which the jury could not agree was set down for 5 February 2007.

6 On 5 February 2007 the applicant was arraigned on an indictment containing two charges, namely (1) a charge of aggravated sexual intercourse with the complainant and, alternatively, (2) a charge of aggravated indecent assault on the complainant. The applicant pleaded not guilty to the first charge and guilty to the second charge. The Crown accepted the plea of guilty to the second charge in full satisfaction of the indictment. 7 A hearing on sentence was held on 9 February 2007. At the conclusion of the hearing the sentencing judge stood the matter over to 14 February 2007 with a view to passing sentence on the applicant on that date. However, on 14 February 2007 the applicant indicated that he wished to withdraw his plea of guilty. On 27 April 2007 his Honour heard an application by the applicant for leave to withdraw his plea of guilty. On 5 May 2007 his Honour delivered a judgment refusing the application for leave to withdraw the plea of guilty and his Honour then proceeded to sentence the applicant.

8 In the proceedings on sentence there was an agreed statement of facts and the sentencing judge repeated this statement of agreed facts almost verbatim in his remarks on sentence. I will now summarise or quote from the agreed facts.

9 At the time of the offence the applicant was forty-three years of age, almost forty-four, and the complainant was thirteen years seven months old. The complainant's mother had been in an on-and-off de facto relationship with the applicant for about six years before the offence was committed. At the time of the offence the complainant's mother and the applicant were living apart, the complainant living with her mother.

10 On 22 December 2005 the applicant, by arrangement, picked up the complainant and her younger half-brother, who was a child of the applicant, for the purposes of spending the night at the applicant's home which he shared with another man who I refer to as "S". "That evening the offender and the victim were on the lounge watching television. The victim was lying on the lounge with her head on the offender's lap. At one stage the victim got up and went to get a drink. When she returned she stood up on the lounge next to the offender to turn on the air conditioner. The offender took hold of the victim by the waist and pulled her down towards him. He kissed her, placing his tongue in her mouth. He placed his hand under her singlet and rubbed her breasts. He then placed his hand inside her pyjama pants and touched her on the vagina. After a period of time the victim got up to go to the toilet and the offender went outside for a cigarette. On the same evening, S had gone shopping. He arrived home after 10.00pm. The events described just a moment ago were observed by S through the lounge room window. S confronted the offender when he was outside having a cigarette. The offender, among other things, said, " Yeah, I have a problem. I will fix it. Don't tell anyone ," and, " she'll never be back and I'll see someone. " On the morning of the 23 December the offender dropped the victim and (her brother) home. The victim did not say anything to her mother. Later that afternoon, S rang the victim's mother and told her what he had seen. The victim was present when her mother received the call. The victim told her mother she did not want to talk about the incident and that she would prefer to write out what happened. She did so and gave what she had written to her mother. On 24 December the victim telephoned the offender using her mother's mobile. The phone was on loud speaker and her mother was present listening to the conversation. The victim told the offender she had told her mother. The offender replied, " Take care. I love you. I'm sorry for hurting you ." On 26 December the matter was reported to police. On Tuesday 10 January 2006 the offender was arrested. After receiving legal advice he declined to be interviewed."

11 On 4 May 2007 the applicant, against the advice of his legal representative, gave evidence before the sentencing judge in which he presented a version of events in which the only conduct towards the complainant in which he had engaged was to kiss the complainant and that he had done so, only after the complainant had kissed him. The sentencing judge rejected this evidence on the basis that it was inconsistent with the statement of agreed facts, that it was inconsistent with the evidence the applicant had given at his trial and that it was inconsistent with what the applicant had said on 14 February 2007 when he indicated that he wished to withdraw his plea of guilty. No submission was made on the hearing of this application that the sentencing judge had made any error in rejecting this evidence of the applicant.

12 In his remarks on sentence the sentencing judge referred to the standard non-parole period. His Honour recognised that he should not treat the standard non-parole period as a starting point and that in any event the applicant had pleaded guilty and the standard non-parole period was not directly applicable, while, nevertheless, retaining significance as a benchmark.

13 In assessing the level of objective seriousness of the offence his Honour found, in favour of the applicant, that the offence had probably been impulsive, that, having regard to the acquittals at the trial, the offence had not been committed in the context of multiple offences and that there was no physical violence and that there had not been any emotional manipulation of the complainant by the applicant.

14 On the other hand, his Honour found, against the applicant, that there had been a range of conduct by him, including kissing the complainant, rubbing her breasts and touching her vagina, that there was a great disparity in the ages of the applicant and the complainant and that in committing the offence he had abused a position of trust. His Honour concluded that the offence fell below the middle of the range of objective seriousness but "above the middle of the lower half of the range of objective seriousness." 15 In his remarks the sentencing judge noted that he had little information about the subjective features of the applicant. At the time of the sentencing hearing the applicant was living with his family in a country town. He had a minor criminal history of no significance and his Honour found that the applicant was of previous good character. His Honour gave the applicant a ten per cent discount for the utilitarian value of his plea of guilty. On this application a submission was made that the sentencing judge should have allowed a larger discount for the plea of guilty but in my opinion the amount of the discount allowed was clearly within his Honour's discretion. It should be noted that the plea of guilty had been late and was only entered after the trial and that the applicant had then sought leave to withdraw the plea of guilty.

16 His Honour declined to find that the applicant was remorseful or to find he had good prospects of rehabilitation or that he was unlikely to re-offend. His Honour observed that, having no evidence as to what had prompted the applicant to behave in a criminal manner on this particular occasion, he could not be satisfied that the applicant would not do so again.

17 As I have already noted, the applicant spent eight months and eighteen days in pre-sentence custody. It was submitted by his counsel in the proceedings on sentence that a sentence should be imposed such that the non-parole period of the sentence did not exceed the period of pre-sentence custody, with the consequence that the applicant would be entitled to be immediately released. His Honour noted a concession made by the Crown in the proceedings on sentence that, if a sentence with such a non-parole period was imposed, the sentencing judge would not fall into appellable error. Reference was made to AIS v Regina [2006] NSWCCA 305. Notwithstanding the concession made by the Crown, his Honour rejected the submission made by counsel for the applicant. His Honour said:- "I cannot see that the subjective mitigating features call for such a substantial departure from the standard if the offence is so close to the middle of the range. I have given earnest consideration to this concession by the Crown, but, as is my duty, have proceeded to make my own assessment."

18 As to the case of AIS, the sentencing judge said in his remarks on sentence that, while there were some similarities between that case and the present case, there were also dissimilarities and, in any event, a sentencing decision in a single other case could not control the exercise of his Honour's discretion in the instant case. His Honour found special circumstances within s 44 of the Crimes (Sentencing Procedure) Act in that the applicant was a mature man being sentenced to imprisonment for the first time, who would need a longer period of parole supervision to assist him in re-establishing his life following release from custody.

19 The only ground of appeal was that the sentence imposed was manifestly excessive. 20 In written submissions counsel for the applicant referred to the concession made by the Crown in the proceedings on sentence and to the case of AIS. It was submitted that AIS was remarkably factually similar to the present case and that in AIS a non-parole period of nine months had been set. 21 As I have already indicated, the sentencing judge referred to the concession made by the Crown and said that he had given earnest consideration to the concession. I note that the Crown's concession was merely that the sentencing judge would not fall into appellable error, if he imposed a sentence in which the non-parole period did not exceed the period of pre-sentence custody. More fundamentally, the sentencing judge was not bound by any concession by the Crown and would not have been bound by any agreement or understanding between the Crown Prosecutor and the applicant's legal representative. Notwithstanding any concession by the Crown or any agreement between the Crown and the defence, his Honour's duty remained to impose a sentence which he considered was appropriate for the applicant's offence, taking into account all objective and subjective circumstances and all relevant sentencing principles. No submission was made, or could have been made, by counsel for the applicant that the sentencing judge had denied the applicant procedural fairness, for example, by encouraging the applicant to believe that the sentencing judge would sentence the applicant in accordance with the Crown's concession.

22 In the case of AIS the applicant pleaded guilty to an offence of aggravated indecent assault on a female aged thirteen. The offender in AIS was a swimming coach who had been coaching the victim. One day after swimming training the offender and the victim got into the offender's car so that the offender could drive the victim to her home. In the car the offender kissed the complainant on the mouth and put his hand inside the victim's pants touching her genitals. In AIS the sentencing judge imposed a non-parole period of nine months and an overall sentence of two years nine months two weeks and four days. The Court of Criminal Appeal dismissed an appeal by the offender against the sentence. 23 An important distinction between AIS and the present case is that in AIS the offender was only 19 years old. In AIS the sentencing judge selected as a starting point a putative head sentence of 3 years 6 months, allowed a discount of 20 per cent for the offender's plea of guilty thereby reducing the head sentence to a little over 2 years 9 months, found special circumstances and reduced the non-parole period to 9 months, which was only between about a quarter and a third of the head sentence, by taking into account the offender's youth, his good prospects of rehabilitation and the circumstance that he had never previously been in custody.

24 In the present case the sentencing judge adopted a starting point for the head sentence of 4 years, that is not much greater than 3½ years, and properly allowed a discount of only 10 per cent for the applicant's plea of guilty, thereby reducing the head sentence to 3 years 7 months. As regards the setting of the non-parole period, the applicant, unlike the offender in AIS, was a mature man in his forties and the sentencing judge had declined to find that the respondent had good prospects of rehabilitation. In these circumstances the sentencing judge decided to set a non-parole period of 2 years 2 months, which was still less than three quarters of the head sentence. 25 In my opinion, even if a direct comparison is made between AIS and the present case, it would not be demonstrated that the sentencing judge made any error in the sentencing of the applicant. However, more fundamentally, an appropriate sentence for an offender in a particular case cannot be determined by making a point by point comparison of the case with any other single case. The familiar words of Hunt CJ at CL in Morgan (70 A Crim R 368 at 371) are appropriate.

26 It was submitted in oral submissions that the sentencing judge should have assessed the objective seriousness of the offence at a lower level. However, in my opinion the assessment by the sentencing judge of the objective seriousness of the offence was within his Honour's discretion. It is to be borne in mind that there is a standard non-parole period for this offence of 5 years. The non-parole period set by the sentencing Judge was 2 years 2 months, that is less than half of the standard non-parole period. 27 I would grant an extension of time for leave to appeal. I would grant leave to appeal, but dismiss the appeal against sentence.

28 McCLELLAN CJ at CL: I agree with Justice James. As his Honour has emphasised it is important to appreciate that the Legislature has provided a standard non-parole period of 5 years for this offence. A mark of the seriousness with which the Legislature views an offence within the mid range of seriousness is the fact that it has provided for a 5 year standard non-parole period, and a maximum term of 7 years. On occasions it has been apparent in this Court that sentencing Judges have paid too little attention to the standard non-parole period provided by the Legislature, particularly when the term of that sentence approaches the maximum term provided for the offence.

29 The sentencing Judge found that the offence fell below the mid range of objective seriousness, but above the middle of the lower half of the range of seriousness. In my view, having regard to the relevant matters that finding was open to his Honour. For the reasons that Justice James has indicated I entirely agree that the ultimate sentence which his Honour imposed, including the non-parole period, were appropriate for this offence.

30 HOEBEN J: I agree with the reasons of Justice McClellan and Justice James, and of the orders as proposed by Justice James.

31 McCLELLAN CJ at CL: Accordingly, the orders of the Court are as proposed by Justice James.

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