Johnson v R

Court of Criminal Appeal (NSW)|2020-07-13|Before: Price J, Garling J, Wright J

Judgment

PRICE J: I agree with Garling J.
GARLING J: Troy Stephen Johnson ("the applicant") seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against a sentence imposed upon him on 1 October 2019 by Wilson SC DCJ in the District Court of NSW.
The applicant was charged with 10 counts relating to sexual activity with two underage female victims. The applicant also had three further charges in relation to the first victim contained on a Form 1 attached to Count 3, and four further charges largely in relation to the second victim on a Form 1 attached to Count 8.
The applicant pleaded guilty to all charges on 31 January 2019, after he had been committed for trial. A discount of 15% was applied to each indicative sentence by the sentencing Judge to reflect those pleas of guilty.
Wilson SC DCJ sentenced the applicant to an aggregate sentence of 28 years imprisonment, with a non-parole period of 21 years, commencing on 25 August 2017 which was the day of the applicant's arrest. The applicant is first eligible for release on 24 August 2038.

Facts

The agreed facts were tendered on the sentencing hearing before Wilson SC DCJ. The following is a brief summary derived from those agreed facts.
Counts 1 to 3 occurred between 11 August 2016 and 15 April 2017 and concern the first victim who was 11 years old at the time. The first victim was known to the applicant. Counts 4 to 10 all occurred on 15 May 2017 and concern the second victim, who was 12 years old at the time. The second victim was not known to the applicant.

The First Victim

The first offence (Count 1) was an aggravated indecent assault which occurred at some time between 11 August 2016 and 15 April 2017. The applicant pulled the first victim onto his lap in his house while she was in swimwear and touched her breasts and then tried to touch her vagina. The victim asked the applicant to stop, but he only did so when his wife returned to the room.
The second offence (Count 2) was grooming a child under the age of 14 years for unlawful sexual activity which occurred around September or November 2016. The applicant showed the first victim a video of a young girl performing fellatio and told the victim it was him with another young girl whom he identified.
The third offence (Count 3) was grooming a child under the age of 14 years for unlawful sexual activity which happened around April 2017. The first victim found the applicant sitting on her bed with his penis exposed. The applicant told her that he would give her $50 to watch pornography with him, or $100 if she did the sexual acts depicted in the pornography to him. The applicant showed the first victim a video of a naked woman engaging in fellatio with a man. The first victim said no, and the applicant responded "Oh come on. Why?" before giving the first victim $50.
Three further offences concerning the first victim were contained on a Form 1 attached to Count 3. The first was committing an aggravated act of indecency towards a victim under authority. In early 2017, the applicant picked up the first victim from a gymnastics class. At one point on the drive, he stopped the car and exposed his penis to the first victim. The first victim told the applicant to stop, which he did, and the applicant then continued to drive her home.
The second offence on the Form 1 was committing an act of indecency towards a person under 16 years old. This offence related to the applicant having his penis exposed on the victim's bed when she walked into the bedroom. It occurred immediately prior to the offence in Count 3.
The third offence on the Form 1 was committing an act of indecency towards a person under the age of 16 years. This was for an incident, when the first victim was 11 years old, and the applicant exposed his penis to her while she was swimming in the applicant's pool.

The Second Victim

The series of offences committed against the second victim all happened on 15 May 2017, when the victim was 12 years old and the applicant was 31 years old.
At around 7:40am on 15 May 2017, the second victim was walking to school along a path surrounded by dense bushland when she saw the applicant emerge from the bushes dressed in a camouflage outfit described as a three‑dimensional leaf "ghillie suit". The applicant put the second victim in a headlock and forced her into the bushes, saying that if she screamed, he would hurt her. The applicant walked the second victim at knifepoint through the bushes to a secluded spot about 30 metres off the path.
At this spot, the applicant bound the second victim's hands and feet with cable ties and tied her to the tree with another cable tie. The applicant removed the second victim's school skirt and underpants, and began touching her stomach, hips, legs, bottom and vagina. He told the second victim that he wanted to rape her. The applicant undid the second victim's bra and touched her upper body and licked the second victim's right breast.
The second victim tried to negotiate with the applicant over the course of this offending, asking the applicant to ensure she remained a virgin. The applicant said the second victim could only leave if she performed fellatio on him and showed her a pornographic video depicting fellatio. The applicant then forced the second victim to fellate him for approximately 5-10 minutes. The second victim had to stop about four times because she was choking. The applicant then removed his penis from the second victim's mouth and ejaculated on the ground.
Over the course of this offending, the applicant also took multiple photos of the second victim undressed or performing fellatio.
The applicant then released the second victim. She had been detained for almost an hour. The second victim ran to school crying and was then taken to hospital. The applicant boasted to a friend later that day about the offending.
These facts gave rise to seven offences to which the applicant pleaded guilty. The first offence (Count 4) contrary to s 86(2)(b) of the Crimes Act 1900, was for detaining a person with intent to commit a serious indictable offence, and whilst doing so, causing actual bodily harm. The second offence (Count 5) was contrary to s 33B(1)(a) of the Crimes Act, namely using an offensive weapon, a knife, intending to commit an indictable offence. The third offence (Count 6) was an offence contrary to s 61M(2) of the Crimes Act, namely indecently assaulting the victim. The fourth offence (Count 7) was one of grooming a child under 14 years of age for unlawful sexual activity contrary to s 66EB(3) of the Crimes Act. The fifth offence (Count 8) comprised an aggravated sexual assault, fellatio, contrary to s 61J(1) of the Crimes Act. The sixth offence (Count 9) involved the applicant committing an act of indecency towards the second victim, contrary to s 61N(1) of the Crimes Act. The final offence (Count 10) was one contrary to s 91H(2) of the Crimes Act, of producing child abuse material, being indecent photographs of the second victim.
During the Police investigation, the applicant was also found to be in possession of other child abuse material unrelated to the offending against either victim, as well as a set of knuckledusters. Each of these offences was taken into account by way of a Form 1 attached to Count 8. As well, two other offences of stalking and an indecent assault of a person under 16 years of age were listed on this Form 1.

Sentencing Proceedings

The sentencing proceedings took place on 27 September 2019 at the District Court of NSW at Gosford. The applicant was legally represented at the hearing.
Written and oral submissions were provided by counsel for the Crown and for the applicant.
The Crown tendered the Agreed Statement of Facts, a criminal history and a custodial history of the applicant, a Victim Impact Statement of the second victim and a letter from a psychologist relating to the first victim. The criminal history showed that the applicant had no prior convictions, and the custodial history showed two minor incidents whilst in custody awaiting sentencing.
The applicant submitted that he was remorseful and had taken responsibility for the offending, had prospects of rehabilitation, had extenuating family circumstances that would be worsened by a long custodial sentence and was of good character on the basis of no prior convictions. In support of these submissions, the applicant tendered an expert psychologist's report on his own psychological condition, reports of various medical personnel concerning the needs of his children and a character reference from a friend.
The applicant was not called to give oral evidence. This was despite unusually persistent comments from the sentencing Judge. In particular, the sentencing Judge said that he would refuse to even entertain findings of remorse or rehabilitation unless the applicant gave evidence in the sentencing hearing. The sentencing Judge explicitly stated that the applicant would be receiving a harsher sentence if he did not give evidence during the sentencing proceedings.
The second victim read her Victim Impact Statement in Court during the hearing.
The Crown did not tender any Victim Impact Statement prepared by, or on behalf of, the first victim. As earlier noted, the Crown tendered without objection a letter from a clinical psychologist which reported on assessments made of the first victim and the results of therapy, all of which had taken place during 2018. Whilst that letter was not capable of being regarded as a Victim Impact Statement which accorded with the requirements of Subdivisions 2 and 3 of Division 2 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), the mother of the first victim was permitted by the sentencing Judge to read the psychologist's letter aloud to the Court.
Having completed the reading of that letter, the sentencing Judge asked if the mother of the first victim wished to say anything else. She then addressed some remarks to the applicant directly about the effect of his offences against the first victim upon her. The sentencing Judge allowed the mother to continue with an assertion about the consequences upon her of the applicant's post‑offence conduct in denying those offences. She also told the Judge that the applicant's wife had made false assertions to Police about the first victim.
In an unorthodox and quite troubling exchange, the sentencing Judge then embarked on some questioning of the first victim's mother about the applicant's attitude "about his other offending of the other victim." The sentencing Judge prefaced that question by the statement: "And what's his attitude, do you know …? Because he's … cowardly not giving evidence."
No basis had been established to think that the first victim's mother knew the second victim, nor that she had spoken to the applicant about his conduct relating to the second victim. The mother of the first victim told the Judge of her views regarding the mindset of the applicant. The sentencing Judge appeared to accept this evidence because he informed counsel for the applicant that this evidence was completely at odds with any expression of remorse "… that may be made by him".

Remarks on Sentence

Wilson DCJ sentenced the applicant on 1 October 2019 to an aggregate term of imprisonment of 28 years with a non-parole period of 21 years.
The sentencing Judge assessed the objective seriousness of the offending in relations to the first victim as mid-range (Count 1), just below mid-range (Count 2) and above mid-range (Count 3). The sentencing Judge found circumstances of aggravation in relation to the first victim: namely, that each offence involved a breach of trust, that Counts 1 and 2 were committed in the presence of, and in front of, the applicant's children, and Count 3 occurred in the victim's home.
The sentencing Judge assessed the objective seriousness of the offending in relation to the second victim as well above mid-range for each of Counts 4 to 8. Circumstances of aggravation were also found in relation to the offending against the second victim: namely, the use of violence, use of a weapon, threat of violence, extensive planning and the victim's youth.
The sentencing Judge assessed the objective seriousness of Counts 9 and 10 as mid-range.
The sentencing Judge found that there was no remorse on the part of the applicant, that the Crown had rebutted good character, that there was no evidence that the applicant's conditions of custody would be onerous, that there were poor prospects of rehabilitation, that there was no exceptional hardship to the applicant's family and that there was no reduction of moral culpability due to any mental condition. Shortly put, his Honour was not persuaded that there was any subjective case of substance advanced by the applicant.
A 15% discount was applied on each indicative sentence for the applicant's pleas of guilty on the basis of the limited utilitarian value having regard to the time at which the pleas were entered, namely upon arraignment in the District Court.
The following table sets out the indicative sentences listed by the sentencing Judge:

Victim 1: Count Section of Crimes Act (unless indicated) & Offence Max. Pen & SNPP Conduct Indicative sentences before discount Discount Indicative sentence (after discount) Count 1 s61M(2) Indecent assault on child under 16 years 10 years Sexual touching 3 years 15% 2 years 6 months SNPP 8 years NPP 1 year 10 months Count 2 s66EB(3) Groom child under 14 12 years Show pornography to child 2 years 15% 1 year 8 months SNPP 5 years NPP 1 year 3 months Count 3 s66EB(3) Groom child under 14 12 years Show pornography to child 3 years 15% 2 years 6 months

3 attachedForm 1 Offences SNPP 5 years NPP 1 year 10 months

Victim 2: Count Section of Crimes Act (unless indicated) & Offence Max. Pen & SNPP Conduct Indicative sentences before discount Discount Indicative sentence (after discount) Count 4 s86(2)(b) Detain with intention to commit serious indictable offence 20 years Kidnapping 10 years 15% 8 years 5 months Count 5 s33B(1)(a) Use weapon to commit serious indictable offence 12 years Threaten with knife 6 years 15% 5 years Count 6 s 61M(2) Indecent assault on child under 16 years 10 years Sexual touching 5 years 15% 4 years 3 months SNPP 8 years NPP 3 years 2 months Count 7 s 66EB(3) Groom child under 14 12 years Show pornography to child 2 years 15% 1 year and 8 months SNPP 5 years NPP 1 year 3 months Count 8 s 61J(1) Aggravated Sexual Assault 20 years Forced fellatio 12 years 15% 10 years 2 months

4 attached Form 1 offences SNPP 10 years NPP 7 years 6 months Count 9 s61N(1) Aggravated act of indecency to child 2 years Ejaculation near victim 12 months 15% 10 months Count 10 s 91H (2) Produce child abuse material 10 years Produce child abuse material 3 years 15% 2 years 6 months

Amended Ground Three - Error in Finding of Presence of Children

It is convenient to begin with the applicant's Amended Ground Three, as it involves a limited Crown concession as to error.
In its final form, Ground 3 asserted error on the part of the sentencing Judge with respect to each of Counts 1, 2 and 3, by taking into account as an aggravating factor, the presence of other children whilst the offending occurred.
The Crown concedes that the sentencing Judge erroneously found that Count 2 was aggravated by the presence of children, as there was no evidence, nor any agreed fact, that any children (other than the victim) were present during the offending. The sentencing Judge was led into error by the Crown's written submissions which asserted the existence of this circumstance of aggravation for Count 2.
The applicant further submitted that Counts 1 and 3 were also infected by the same error. It is clear from the Remarks on Sentence, that the sentencing Judge did not find that Count 3 was aggravated due to the presence of children. To that extent, this ground must fail.
As the Agreed Facts show, the offending in Count 1 occurred while the applicant's three children, aged 6, 4 and 3, were present in the same room playing on the floor. The applicant submitted that there is no evidence the children saw, or were otherwise aware of, the offending, and that the Agreed Facts do not support a finding of a circumstance of aggravation.
In making this submission, the applicant relies on the judgment of Howie AJ in Gore v R; Hunter v R [2010] NSWCCA 330 at [104], where his Honour said: "… it is not difficult to appreciate that the provision in s 21A(2)(ea) is principally aimed at the deleterious effect that the commission of a crime, particularly one of violence, might have on the emotional wellbeing of a child.…whether such a factor is aggravating in a particular case and how aggravating it is, will depend upon the nature of the offence charged and the likelihood that the child will be affected by it, having regard to all the circumstances including the child's age."
The applicant's submission is that, in the context of the particular conduct, namely touching of the victim's breast and vaginal area from outside of her swimsuit, and as there is no evidence the children were aware of the offending, the Crown had not demonstrated that the offending had any impact on the emotional wellbeing of the other children who were very young, and therefore their mere generalised presence in the room could not constitute a circumstance of aggravation.
The Crown submitted that, given the children were in the room at the time of the offending, this was sufficient to constitute an aggravating factor in accordance with s 21A(2)(ea) of the Sentencing Procedure Act. The Crown submitted that the extent to which the children were impacted by the conduct is a matter that goes to the significance and weight to be accorded to, but not the inclusion of, the aggravating factor.
In R v Seymour [2012] NSWSC 1010 at [42]-[44], Price J considered Gore when he declined to take into account, as a circumstance of aggravation, the presence of a child who was not shown to have been awake during, or otherwise aware of, the offending. In McLaughlin v R [2013] NSWCCA 152, Button J (with whom Latham J and Barr AJ agreed) at [28]-[32], held that it was an error for the sentencing Judge in that case to take into account the "generalised presence" of a child during the relevant offending where there was no evidence of any awareness of the child as to what was occurring, or what had occurred.
RA Hulme J considered this issue in Aleshbi v R; Eshbi v R [2018] NSWCCA 30 at [53]-[56]. His Honour held that in the particular circumstances where the children were inside a house during the occurrence of an affray immediately outside of the house, and there was no evidence of any knowledge or awareness on the part of the children as to the offending or its consequences, it was an error to find the presence of the children to be a circumstance of aggravation.
Whilst from the terms of s 21A(2)(ea) of the Sentencing Procedure Act it may appear that the mere physical presence of a child is sufficient to make out this aggravating factor, the interpretation which has been preferred in the authorities to which I have referred is that the presence must be a "knowing" one i.e. the child must be of an age and have a level of awareness such as to have been conscious of the offending so that the offending will have had, or be likely to have had, an adverse consequence on the child of the kind referred to in Gore.
In the circumstances here, although the offending happened in the same room as the applicant's children, where the children were young and apparently playing amongst themselves, and in the absence of any evidence or agreed fact that the children were aware of or affected by the offending conduct, I am persuaded that it was an error for the sentencing Judge to have taken this factor into account as an aggravating factor on Count 1.
This conclusion, taken together with the appropriate concession of the Crown concerning Count 2, means that the sentence imposed upon the applicant by the sentencing Judge was infected by error. This ground of appeal must be upheld.
The consequence is that, since it is not incumbent upon an applicant to show that a substantial injustice was caused by such error, this Court must re‑exercise the sentencing discretion afresh: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
This conclusion means that it is unnecessary, and inappropriate, to consider or determine Ground 2 which contended that the sentence imposed below was manifestly excessive. However, it is appropriate to consider Ground 1, albeit in only a summary fashion.

Ground 1: Error in Admission of Exhibit B

At the sentence hearing, counsel for the applicant tendered a letter which, in substance, described the applicant as a person of good character. It said that the offences to which the applicant was pleading guilty were "out of character" for the person known to the author. The only purpose for the tender of this reference was to raise, and rely upon, the previous good character of the applicant as a mitigating factor on sentence.
This conclusion is confirmed by the written Outline of Submissions by counsel for the applicant which said that the applicant was a person "otherwise of good character". In those circumstances, it was open to the Crown to tender the material in Exhibit B to challenge the contention that the Court should find that the applicant was a person of prior good character, which is a mitigating factor on sentence: s 21A(3)(f) of the Sentencing Procedure Act. The material was admissible, and there was no error on the part of the sentencing Judge in admitting it.
Further, notwithstanding the submissions for the applicant in this Court, there was nothing further which occurred during the course of the sentencing proceedings which made the decision to admit Exhibit B erroneous, or which ought to have led the sentencing Judge to reject the evidence in Exhibit B.
I would not uphold this ground of appeal.
It is therefore appropriate to now consider the resentencing of the applicant.

Resentence

On the appeal, if the Court came to resentence the applicant, the Crown sought to rely upon additional evidence contained in an affidavit of Mr Steven Thomson sworn 30 June 2020. The evidence related to an incident involving the applicant which occurred in custody on 27 April 2020. Although no objection was taken to its admission, I do not regard the evidence as being of any relevance on resentence.
Accordingly, this Court must proceed to resentence the applicant on the basis of the material properly before the sentencing Judge.
The Crown contended that, in exercising the sentencing discretion afresh, this Court should find that no lesser sentence is warranted in law and dismiss the appeal: s 6(3) Criminal Appeal Act.
The applicant submitted that this Court should impose a significantly lower sentence in line with his overall submission that the sentence was manifestly excessive (which it was unnecessary for the Court to determine).
It is necessary to consider the objective seriousness of each Count. It is convenient to first consider the Counts involving the first victim. I would assess each of Counts 1 and 2 as being below the mid-range of offending (rather than mid-range and just below mid-range) because of the absence of the aggravating factor the subject of Ground 3 of the appeal. As well, it is not appropriate to have regard to the answers given by the mother of the first victim to the sentencing Judge's questions. I would not differ from the sentencing Judge's assessment of the objective seriousness of Count 3.
In her written submissions, counsel for the applicant described the findings on the objective seriousness made by the sentencing Judge as either uncontroversial, or else "… would not be disturbed". At the sentencing proceedings, counsel for the applicant had sought findings of objective seriousness which were less serious than the conclusions ultimately reached by the sentencing Judge. Whilst this Court is not bound by either the sentencing Judge's findings or counsel's concessions when re-sentencing the applicant, in light of the approach of the applicant's counsel I am content to re-sentence the applicant by reference to the sentencing Judge's findings on the objective seriousness of Counts 4 to 10 (inclusive).
The sentencing Judge was dismissive of the subjective case of the applicant which was put before the Court during the sentencing hearing. Like the sentencing Judge, I fail to be convinced that the applicant has shown any genuine remorse. What was said to the psychologist, to me, does not constitute real remorse or contrition for the harm caused by his actions.
Nevertheless, I do not agree with the sentencing Judge that no subjective factors can relevantly be found in the applicant's favour. I am satisfied that, due to the applicant's age and stated acceptance that he would undertake rehabilitation programs, he shows some prospect of rehabilitation. He has not been previously convicted of any criminal offence.
I am satisfied that it is appropriate to proceed by way of an aggregate sentence. In so doing, I allow a discount of 15% for the applicant's plea of guilty on each indicative sentence. I have also had regard, as guideposts, to the maximum penalties for each offence and, where appropriate, any statutory non-parole period. I have also had regard to the statutory objects and common law principles of sentencing.
It is necessary that I indicate the sentence that would have otherwise been imposed: s 53A of the Sentencing Procedure Act. It is convenient to do so by the use of the same table as set out above, but adapted to note the changed indicative sentences which I would impose for Counts 1 and 2:

Victim 1: Count Section of Crimes Act (unless indicated) & Offence Max. Pen & SNPP Conduct Indicative sentences before discount Discount Indicative sentence (after discount) Count 1 s61M(2) Indecent assault on child under 16 years 10 years Sexual touching 2 years 6 months 15% 2 years 1 month SNPP 8 years NPP 1 year 7 months Count 2 s66EB(3) Groom child under 14 12 years Show pornography to child 1 year 6 months 15% 1 year and 3 months SNPP 5 years NPP 1 year Count 3 s66EB(3) Groom child under 14 12 years Show pornography to child 3 years 15% 2 years 6 months

3 attachedForm 1 Offences SNPP 5 years NPP 1 year 10 months

4 attached Form 1 offences SNPP 10 years NPP 7 years 6 months Count 9 s61N(1) Aggravated act of indecency to child 2 years Ejaculation near victim 12 months 15% 10 months Count 10 s 91H (2) Produce child abuse material 10 years Produce child abuse material 3 years 15% 2 years 6 months

Aggregate Sentence

In considering the appropriate aggregate sentence to be imposed, it is necessary to ensure that the applicant is adequately punished for all of his offences, and that this Court pays particular regard to the need for general deterrence and denunciation. However, in circumstances, as here with respect to the second victim, where a number of the serious offences occurred as part of a single course of conduct over a limited period, careful attention must also be paid to the application of the principle of totality.
Careful attention must also be paid to ensure that the real effect of the 15% discount which has been applied to each indicative sentence is adequately reflected in the final aggregate sentence. It is, of course, proper to apply the discount to the indicative sentences and not the aggregate sentence. However, the utilitarian value of early pleas should be reflected in a final aggregate sentence lest the incentive to enter such pleas be lost through the use of an aggregate sentence.
In my view, the appropriate aggregate sentence is one of 24 years with a non‑parole period of 18 years.

Orders

I propose the following orders: 1. Grant the applicant an extension of time within which to file a Notice of Grounds of Appeal to 8 May 2020. 2. Grant leave to Appeal. 3. Appeal upheld. 4. Aggregate sentence imposed by Wilson SC DCJ in the District Court of NSW on 1 October 2019 be quashed. 5. In lieu, an aggregate sentence is imposed of 24 years imprisonment commencing on 25 August 2017 and concluding on 24 August 2041, with a non-parole period of 18 years. 6. Mr Johnson will not be eligible for release before 24 August 2035.
WRIGHT J: I agree with Garling J.

Amendments 18 February 2021 - Addition of further file number on coversheet 18 February 2021 - Minor amendment coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2021

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