Muldrock error
19Following the decision in Muldrock v R [2011] HCA 39, (2011) 244 CLR 120 the appellant sought an enquiry into his sentence under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW). The Attorney General conceded that referral under s 78(1) was warranted.
20On 19 December 2013 Latham J granted the application and referred the matter to this Court to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). Her Honour was satisfied that the sentencing judge's prescriptive approach to the imposition of the standard non-parole period where the offence under consideration was in or above the mid range was contrary to the principled approach identified by the High Court in Muldrock. She was also satisfied that referral was warranted because the Court of Criminal Appeal, relying upon the decision in R v Way [2004] NSWCCA 131; 60 NSWLR 168, had rejected the ground of appeal against sentence that challenged the sentencing judge's approach to the standard non-parole period where the offence under consideration was in or above the mid range, the approach since disapproved of by the High Court.
21The sole ground of appeal is in the following terms:
"The sentencing judge erred in his consideration of the respective standard non-parole periods in light of the principles identified in Muldrock v The Queen (2011) 244 CLR 120."
22The Crown conceded Muldrock error. That being the case the question is whether, in undertaking the re-sentencing exercise for each of the ten offences the subject of a standard non-parole period, the imposition of a lesser sentence is warranted at law as provided for in s 6(3) of the Criminal Appeal Act.
23There was no challenge to the assessment of any of the offences relative to an offence in the middle of the range of objective seriousness, or any of the sentencing judge's related findings of fact bearing upon the nature and duration of the sexual assaults committed against each of the children. As RA Hulme J observed in Carlton v R [2014] NSWCCA 14, an assessment of objective seriousness referable to mid range offending does not run counter to Muldrock. The question is whether in undertaking the re-sentencing exercise enlivened by a finding of Muldrock error, the imposition of a lesser sentence is warranted at law. That exercise requires that all relevant statutory requirements and sentencing principles be taken into account to inform the positive opinion provided for in the section referable to the facts found by the sentencing judge that are unaffected by the Muldrock error (see Baxter v R [2007] NSWCCA 237; 173 A Crim R 284; see also RLS v R [2012] NSWCCA 236 at [98]; and ZZ v R [2013] NSWCCA 83 at [97]).
24The approach to sentence mandated in Muldrock requires a synthesis of all factors bearing upon an appropriate sentence for each of the ten counts on the indictment to which a standard non-parole period attaches, including the objective gravity of that offending and the impact of any aggravating factors; the appellant's subjective circumstances and the legislative guidance offered by the maximum penalties and the standard non-parole periods, without the latter being prescriptive or exerting undue influence in the determination of an appropriate sentence. The standard non-parole period is not to be used as a starting point for a mid range offence after conviction; neither is it to have determinative significance (Muldrock at [31]). It may, however, be a more significant factor where an offence is in the mid range (or above) of objective seriousness and where there is little operating in the offender's favour (see Filippou v R [2013] NSWCCA 92 at [116]; R v Nguyen [2013] NSWCCA 195 at [63]).
25The extent to which there needs to be an order for partial accumulation of some or all of the individual sentences will also need to be considered to ensure the total effective sentence reflects the criminality across all offences.
26In determining whether another sentence is warranted at law, consideration must be given to the evidence relied upon by the appellant as it relates to his custodial conditions since he was sentenced in October 2008 and his conduct as a prisoner since that time. In R v Douar [2005] NSWCCA 455; 159 A Crim R 154 at [123] Johnson J considered the admissibility of evidence of this kind for the purposes of s 6(3) adopting the principled approach to that question in R v Burke [2002] NSWCCA 353 at [82]-[92].
27The relevance of evidence of post-offence conduct in cases where a Muldrock error has been conceded or established will vary from case to case. In Ali v R [2014] NSWCCA 45 the appellant accepted criminal responsibility and expressed remorse for the offending hitherto denied over many years, made efforts to obtain psychological help to provide insight to his offending, including completing eleven of fourteen sessions in the CUBIT preparatory program before he was advised by the Legal Aid Commission that his sentence was being reviewed following the High Court decision in Muldrock. Taken together these factors led the Court to conclude that a lesser sentence was warranted in law. In Grant v R [2014] NSWCCA 67 the appellant's deteriorating health whilst serving the sentence under review also attracted the intervention of the Court.
28The appellant relied upon an affidavit affirmed on 27 March 2014 in which he set out his custodial history including his current classification status as an A2 inmate at Goulburn Gaol where he has been a prisoner since May 2009.
29He was on "non-association protection", at his own request, for a few months when first taken into custody in October 2006 after being assaulted in police cells by another prisoner who was aware of the fact that he had been charged with child sex offences. Between 2007 and 2009 he was on "limited association" protection.
30On sentence in 2008 the sentencing judge was asked to take into account (it would appear in support of a finding of special circumstances) that the appellant would serve his sentence "on protection" and be denied work, educational courses and recreational opportunities. His Honour declined to make that finding in the absence of any evidence that the appellant's custody would prove more onerous, observing that child sex offenders were, to his understanding, housed in "special gaols" and afforded access to "courses and treatment".
31Since May 2009 the appellant has been on what he described as "normal protection", having been assured of his safety within the Special Management Area Placement which is specifically designed for the management of offenders who are serving sentences for sexual offending involving children. In a letter annexed to an affidavit sworn by the Crown's instructing solicitor and read by the Crown on the appeal, Mr Bolger, the General Manager of the Goulburn Correctional Centre, confirmed that the appellant will be managed under that arrangement for the duration of his sentence, having the same scheduled access to all programs and services as are shared among the various groups of inmates at Goulburn. Mr Bolger also confirmed the appellant's evidence that he has not been the subject of any breaches of prison discipline since his incarceration and that he has been employed as a librarian at the Goulburn Correctional Centre since December 2012.
32The appellant gave evidence that he has worked industriously and with initiative in this position. He also expresses a willingness to undertake a therapeutic program for sex offenders and has spoken with staff about the Sex Offenders' Preparatory program and CUBIT which he has been given to understand will not be available to him until he is within the last few years of his non-parole period. Mr Bolger confirms that the program is offered to offenders within two years of their earliest release date and that the appellant has been given a referral package to complete a preparatory course prior to CUBIT. The appellant also indicates a willingness to participate in the "Managing Emotions" course which has been recommended to him.
33In my view, despite the insights the appellant's evidence offers as to how his sentence has been served to date, neither evidence of his proven compliance with prison discipline nor the fact that he was on non-association protection for a relatively short period in 2006/2007, limited association protection for about two years, and thereafter "normal protection", justifies interference with the sentences imposed by the sentencing judge. In addition, and despite the appellant's willingness to participate in programs specifically designed for the rehabilitation of sex offenders, what remains significant is that he does not express remorse nor accept responsibility for his past offending (the position he took on sentence), both factors which diminish the weight to be afforded any suggested improvement in his prospects of rehabilitation because of the programs offered in prison. There was no evidence updating the appellant's risk of reoffending.
34In my view, whether any lesser effective sentence is warranted will be dictated in this case by focusing on whether the sentences for all or any of the eight s 66A offences can be sustained. Were the sentences imposed for those offences undisturbed, and were the orders for accumulation and concurrency across all offences maintained, any re-sentence on the remaining two s 61M(2) offences would have no effect on the appellant's effective non-parole period, the non-parole periods imposed for both offences having since expired. On the other hand, if a lesser sentence is warranted for any or all of the eight s 66A offences, a restructuring of the commencement dates of all sentences (even in respect of the offences where the non-parole period has expired) is unavoidable.
35The Crown submitted that despite Muldrock error, after appropriate consideration is given to both the maximum penalty of 25 years and the standard non-parole period of 15 years for each of the eight s 66A offences as legislative guideposts, and where the objective seriousness of each count is unmitigated by anything in the appellant's subjective circumstances or the evidence led on appeal, no lesser effective sentence would result.
36The Crown also submitted that the appellant has the benefit of a considerable amelioration of the impact of the sentences imposed by a modest accumulation of 12 months. The Crown submitted that given that the sexual offending involved multiple assaults of two young children over the course of a weekend, an order for partial accumulation of each of the individual sentences for the s 66A offences is the appropriate sentencing structure and not the very modest accumulation ordered by the sentencing judge. The Crown submitted that even if some adjustment to the individual sentences might be warranted in recognition of the overly prescriptive approach of the sentencing judge to the standard non-parole periods, once the sentencing order is restructured, no lesser effective sentence will result.
37I accept that even on re-sentence a lengthy effective sentence is inevitable in order to reflect the fact that, amongst other features of objective seriousness, CBS was apparently groomed over some months and where the assaults of both children were planned with JAW's birthday party sleepover affording him that opportunity. Although the offending on the indictment extended over a period of days and not over weeks, months or years, it was not isolated and opportunistic offending (see Jones v R [2012] NSWCCA 262 at [96]). It was also offending in violation of the children's legitimate expectation that CBS's home was a place of safety and refuge.
38The length of the effective sentence must also reinforce the need for the criminal law to protect children from sexual exploitation and sexual violation and for appropriate recognition to be given to the standard non-parole period and maximum penalty the parliament has provided for sexual intercourse with a child under 10 years. It is now well established that sexual offending against children has profound and deleterious effects for many years. As this Court recognised in R v Gavel [2014] NSWCCA 56 at [110] the absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm they are subjected to when they are forced to engage in sexual activity.
39As noted, there is nothing in the appellant's personal circumstances to mitigate the weight to be given on sentence to the objective seriousness of his offending. He was not a person who was able to rely on good character given his criminal record for offending of the same kind as the offences for which he stood trial (cf RJA v R [2014] NSWCCA 89).
40Both counsel referred to cases in this Court where sentences for multiple breaches of s 66A(1) have been the subject of review either by way of an application for leave to appeal sentence brought by an offender or a Crown appeal against inadequacy. While there are some common features in each of the cases referred, no two cases are parallel and few are relevantly comparable. The facts and circumstances of each case vary depending on the age of the child, the duration and extent of the sexual assaults, and the extent to which the conduct involves a breach of trust in addition to that which is inherent in the sexual abuse of a child under 10 by an adult. The utility of drawing any conclusions as to an appropriate penalty range was further limited because many cases were decided when the principles in R v Way were the applicable law (see RJA v R [2008] NSWCCA 137; 185 A Crim R 178; and R v Smith [2011] NSWCCA 163 where many of the cases to that date were summarised by RS Hulme J). It is also necessary that sentences imposed after the maximum penalty for s 66A was increased in 2009 are disregarded despite the fact that the standard non-parole period remained at 15 years.
41I accept that there is no hierarchy of seriousness for a breach of s 66A(1) with penile penetration at the apex. Other means and mechanisms by which the offence can be committed may, in a particular case, be equally if not more objectively serious. I also accept, as was most recently restated in Simpson v R [2014] NSWCCA 23 at [33]-[34] citing Doe v R [2013] NSW CCA 248 at [54] that there is no authority in this Court which supports the proposition that digital sexual intercourse is, of itself, less serious than other forms of forced sexual intercourse. In Doe at [54] it was stated that:
"... Reference to the above authorities demonstrates that it has been emphasised, on more than one occasion, that the objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question. Concentrating upon, or giving primary significance to, the form of the forced sexual intercourse in determining its objective seriousness reflects an erroneous approach. It is equally erroneous to attempt to rank forms of forced sexual intercourse in some hierarchy so as to determine their objective seriousness."
42Although both Simpson and Doe were concerned with sexual intercourse without consent involving adult victims, in Gavel, where breaches of s 66A were under review on a Crown appeal, Doe and Simpson were cited with equal application (at [97]).
43In this case, although I regard the two counts of penile penetration as objectively more serious than those involving fellatio, cunnilingus and digital penetration by reason of what appears to be more prolonged assaults, and where a condom was used and ejaculation occurred, were I not constrained by the findings of the sentencing judge that the offending constituted by those two counts was above mid range (a finding confirmed as free from manifest error on the previous appeal with the proviso that, on the sentencing judge's limited findings, replicated in [15] above, the offending exceeded mid range by a modest degree: see Ingham v R [2011] NSWCCA 88 at [119]), I would not have been persuaded that the two counts of penile penetration warranted a finding of objective seriousness above the mid range. On the facts as they emerge from the sentencing reasons, I find little to distinguish between the five s 66A offences involving penetration of the vagina of either child in terms of the extent of penetration or the duration of the assaults. That said, the sentences I propose for the two counts of penile penetration of both children (counts 5 and 9) will reflect the findings of the sentencing judge as will the sentences for the penetrative assaults the subject of counts 4, 7 and 12 (respectively the counts involving cunnilingus and fellatio committed against both children) and the assaults the subject of counts 2, 10 and 11 (respectively the counts involving digital penetration).
44I also take into account that JAW was younger than CBS, having turned 8 on the weekend of the offending, CBS being aged 9 years and 3 months at that time, and that the offences are more serious, by a degree, for that reason (see R v PGM [2008] NSWCCA 172; 187 A Crim R 152 at [36]). What is also significant is that each of the assaults constituted by each of the eleven counts was committed in the presence of both children by an offender with a previous criminal record for similar offending.
45I am persuaded that despite the objective seriousness of the offending, unmitigated by anything in the appellant's subjective circumstances, a lesser sentence for each of the ten counts to which a standard non-parole period applies is warranted because of the determinative significance given to the standard non-parole period by the sentencing judge. The one count (count 6) to which no standard non-parole period attaches has been adjusted to ensure relativity with the other sentences. After an order for a partial accumulation of some of the sentences a lesser aggregate sentence will result.
46I have made a limited finding of special circumstances in relation to counts 5 and 9, in consequence of the partial accumulation of some of the individual sentences.