KAF v R

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

KC v R [2009] NSWCCA 110 R v Duffy [1999] NSWCCA 321 R v Hibberd [2009] NSWCCA 20 R v Huynh [2005] NSWCCA 220 CASES CITED : R v JCE [2000] NSWCCA 498; (2000) 120 A Crim R 18 R v King [2009] NSWCCA 117 R v Way (2004) 60 NSWLR 168 SGJ v R; KU v R [2008] NSWCCA 258 Vu v R [2006] NSWCCA 188

PARTIES: KAF (Applicant) The Crown

COUNSEL: A Francis (Applicant) L Babb SC/M Rabsch (Crown)

SOLICITORS: Legal Aid Commission for NSW (Applicant) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/8954

SPIGELMAN CJ McCLELLAN CJ at CL JOHNSON J

FRIDAY, 10 JULY 2009 KAF v R Judgment 1 SPIGELMAN CJ: I agree with McClellan CJ at CL. 2 McCLELLAN CJ at CL: The applicant pleaded guilty to two counts of aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act 1900 ("the Act") the circumstances of aggravation being that the victim was under the age of 16 years. There were two matters on a Form 1, being offences of aggravated acts of indecency contrary to s 61O, of the Act which were taken into account in respect of the sentence for the second count. 3 The maximum penalty for the offences contrary to s 61J of the Act is a period of imprisonment for twenty years. There is a standard non-parole period which is a period of ten years imprisonment. The maximum penalty for an offence contrary to s 61O of the Act is imprisonment for five years. 4 For the first offence the applicant was sentenced to a fixed term of five years imprisonment to date from 19 August 2007 and expire on 18 August 2012. For the second offence, and taking into account the two Form 1 offences, the applicant was sentenced to a non-parole period of five years to date from 19 August 2008 and expire on 18 August 2013 with a balance of term of three years to expire on 18 August 2016. The applicant received a total effective non-parole period of six years and a balance of term of three years. 5 The respondent concedes that the imposition of a fixed term for the first offence was contrary to s 45(1) of the Crimes (Sentencing Procedure) Act 1999 (see SGJ v R; KU v R [2008] NSWCCA 258 at [76]-[78]; KC v R [2009] NSWCCA 110 at [20]). Because that Act provides a standard non-parole period for these offences the court was required to set a non-parole period. The error was technical and does not operate to the disadvantage of the applicant but must be corrected by this Court. 6 During the course of his remarks on sentence the sentencing judge referred to the two Form 1 offences as offences of "aggravated indecent assault" an offence contrary to s 61M of the Act whereas the offences were of "aggravated acts of indecency" contrary to s 61O. A maximum penalty of seven years imprisonment applies to the offence contrary to s 61M rather than five years for the offence contrary to s 61O. However, a reading of her Honour's entire remarks indicates that the mistake was a slip and does not suggest a misunderstanding by her Honour of the nature of the Form 1 offences. 7 The application for leave to appeal seeks to raise one ground of appeal, being that the sentencing judge erred in her consideration of the standard non-parole period by failing to consider the putative mid-range offence when determining that the objective seriousness of these offences fell in the mid-range of objective seriousness.

The facts 8 The applicant makes no complaint about her Honour's statement of the relevant facts. The applicant was the victim's, (who is identified by the initials DJ), natural father. At the time of the offences he had separated from the victim's mother. 9 The victim was aged 11 years at the time of the offences. The first offence involved the victim rubbing lubricant on the applicant's penis following which he penetrated her genitalia to some extent. The second offence occurred when the applicant and the victim were in bed together and, he being naked, had the victim rub his penis and then placed his fingers in her genitalia, which he penetrated "to some extent". One of the matters on the Form 1 involved the applicant masturbating while his daughters were in the bed with him, the complainant being aware of the activity. The second matter on the Form 1 involved the victim masturbating the applicant. 10 The sentencing judge described the offences as involving very serious criminality. Apart from the age of the child victim her Honour emphasised that the applicant, being the child's father, was in a position of authority in relation to her. Her Honour concluded that the offences would have had a significant effect on the child's psycho-sexual development and may cause problems for her for many years to come. The relationship of trust with her father was broken. 11 Her Honour concluded that the offences occurred when the applicant was abusing alcohol and there was also a probability of a psychosis which resulted in him being disinhibited. Although not an excuse for his conduct her Honour concluded that these matters provided "in part some explanation" for his offending. 12 The applicant was 56 years of age at the time of sentencing. Apart from some traffic matters he has a minor criminal history, comprising convictions for knowingly taking part in the supply of Indian hemp (in 1991), goods in custody (in 1993) and receiving (in 1995). He has previously served two short periods of imprisonment. The sentencing judge concluded that the applicant's record entitled him to some leniency but this must be balanced with the fact that the present offences were committed over a six month period during which they went undetected. 13 The applicant was born in New Zealand and moved to Australia in 1989. He told the psychiatrist who provided a report for the court that he had been sexually abused by a neighbour when he was aged between 8 and 12 years of age. Before he was taken into custody the applicant was self-employed as a bush furniture manufacturer. 14 The applicant gave evidence before the sentencing judge who concluded that "he seemed to have some insight into the gravity of his conduct." He told the sentencing judge that he intended to take part in the sex offender's program within the prison system and seek counselling for his alcohol and drug problems. His prison counsellor reported that "he was making a genuine attempt to address his alcohol and other drug issues." 15 The sentencing judge concluded that the applicant was genuinely remorseful. He made admissions to police officers and expressed his shame at his past conduct on a number of occasions. In respect of the first count the prosecution case was dependent upon voluntary disclosure of the offence by the applicant which her Honour concluded was tangible evidence of remorse. 16 When he was seen by his treating psychiatrist, Dr Adam Martin, in prison in late 2007 and early 2008 the doctor concluded that the applicant's insight was impaired and he made the diagnosis that he was manic with psychotic symptoms. However, at a later review Dr Martin concluded that the applicant has an underlying psychotic disorder which had responded effectively to medication. 17 As I have indicated the applicant pleaded guilty to the offences and the sentencing judge allowed a reduction of 25% for the utilitarian value of the pleas. Although her Honour acknowledged some difficulty in assessing the applicant's prospects for rehabilitation she concluded that they would "appear to be reasonable". With respect to the objective seriousness of the offence and the standard non-parole period her Honour said: "I come now to consider whether it is appropriate to impose the standard non-parole period for either charge. As to the first charge, I am of the view that it is at the mid-range of objective seriousness for such an offence. It involved penile penetration of a child aged just 11, the lower limit for a s 61J offence which encompasses children up to the age of 16 years. While the degree of penetration was limited and there is no evidence of physical injury, the child was under the offender's authority, he being her father. As to the second charge, while it involved digital rather than penile penetration and to a limited extent, the complainant's age and the fact that the offender was the child's father again places, in my view in the mid-range. However, I have determined not to impose the standard non-parole period for either offence because of the pleas of guilty and the psychiatric evidence. In addition, in respect of the first offence another reason is the fact that the offender voluntarily disclosed this offence to the authorities. In respect of the second offence a further reason for not imposing the standard non-parole period is my finding of special circumstances." 18 It is apparent that although shortly stated her Honour was clear in her reasons for concluding that the offences fell within the mid-range of objective seriousness and explained her reasons for not imposing the standard non-parole period. However, the applicant complains that her Honour erred because she did not "postulate what the putative mid point offence was in relation to these offences". Emphasis was placed on the reasons of the court in R v Way (2004) 60 NSWLR 168 at [72] where it was said: "It is evident that the sentencing exercise which is now required for Table offences requires a critical focus, not only upon the objective seriousness of the particular offence before the court, but also upon the abstract, or putative, offence in the middle of the range of objective seriousness, in respect of which the standard non-parole period is specified."

See also Vu v R [2006] NSWCCA 188 at [29], [30], [31]. 19 It was submitted that because the sentencing judge had not undertaken a comparative exercise between the instant offences and an hypothesised abstract offence in the middle of the range of objective seriousness her Honour had fallen into error. It was submitted that her Honour should have undertaken the analysis suggested by Simpson J in R v Huynh [2005] NSWCCA 220 where her Honour said at [27]: "The assessment of where the offence lies in the range of offences of its type is to be made by reference to all of the facts and circumstances of the offence, and to the range of offences of its kind which come before the court." 20 Although a sentencing judge must by his or her reasons disclose that the objective seriousness of the instant offence has been determined after consideration of the range of objective seriousness which the offence contemplates, elaborate reasoning is not required in many cases. Apart from the passage emphasised by the applicant this Court emphasised in Way that the process must be approached intuitively and is "based upon the general experience of the courts in sentencing for the particular offence" (at [74]-[75]). The court said that the process of reasoning would: "depend upon a combination of sentencing experience, which is based upon the range of incidents which go to make up cases of the relevant kind that come before the courts, combined with an understanding of the facts which are necessary elements of the offence, as well as those that are concerned with its consequences and the reason for its commission (at [79])." 21 The court confirmed that the task required of the sentencing judge would not differ to any material extent from that which had always been necessary in evaluating the objective seriousness of an offence. The assessment of where an offence falls in the range of objective seriousness "involves a subjective judgment, based on experience, as well as information, which cannot be precisely and comprehensively articulated" R v JCE [2000] NSWCCA 498 at [19]; (2000) 120 A Crim R 18 at [19]. A sentencing judge is not expected to write an essay in jurisprudence when delivering remarks on sentence R v Duffy [1999] NSWCCA 321 (at [11]). 22 In the present case her Honour identified the critical matters which led to the conclusion that each offence fell within the mid-range of objective seriousness, being the age of the victim and the fact that she was under the applicant's authority. Having regard to the elements of the offence both of these aspects were of particular significance when determining where the offences fell on the range of objective seriousness. When, as it happened, both matters were present a finding that the offence fell within the mid-range was clearly open. This Court has previously emphasised that the age of the victim is an important factor when evaluating the seriousness of the present offences. In R v JCE [2000] NSWCCA 498 at [13]. Her Honour also recognised and had regard to the fact that in each case that the degree of penetration was limited and that there was no evidence of physical injury. Her Honour obviously had in mind that either of these elements may be present when the offence is committed which, depending upon all the other circumstances of the particular offence, may bring it within the mid range or place it higher up the scale of objective seriousness. Although her reasons were not elaborate the nature of the statutory offences and the circumstances of the particular offences did not require any greater consideration of these issues. 23 It was submitted by the applicant that because the second offence involved digital penetration it must for that reason fall below the mid-range. This submission is contrary to the statements by this Court in R v King [2009] NSWCCA 117 where it was emphasised that the seriousness of an offence cannot be defined by reference only to the nature of the penetration without consideration of all the other circumstances of the offence. In that case the court said that: "The type of penetration is simply one factor and by itself does not indicate how serious the particular offence is … The fact that it was not penile penetration does not mean that the offence is reduced to low range" at [36]. See also R v Hibberd [2009] NSWCCA 20 at [20]-[21], [26] and [56]. 24 Although her Honour found that the offences fell within the mid-range of objective seriousness she determined that the appropriate sentences should include non-parole periods significantly lower than is provided for a mid-range offence. In determining the appropriate sentence her Honour gave careful consideration to the applicant's guilty plea, his voluntary disclosure of the first offence to the authorities and his psychiatric condition. To my mind no error has been demonstrated in the sentences imposed. 25 However, because, as I have indicated, her Honour did not comply with the provisions of s 45(1) of the Crimes (Sentencing Procedure) Act this Court must intervene and impose a parole period for that count. For the reasons given by her Honour when determining the appropriate non-parole period for count 2 the non-parole period for count 1 should be the same as provided for count 2. I would make the following orders:

1. Leave to appeal granted and the appeal upheld in part. 2. The sentence imposed in relation to count 1 quashed and in lieu thereof the applicant is sentenced to a non-parole period of 5 years to date from 19 August 2007 and expire on 18 August 2012 with a balance of term of 3 years to expire on 18 August 2015. 3. The appeal is otherwise dismissed. 26 JOHNSON J: I agree with McClellan CJ at CL. **********

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.