Karel EEDENS v R

CITATION: Karel EEDENS v R [2009] NSWCCA 254

R v Todd [1982] 2 NSWLR 517 R v Borkowski [2009] NSWCCA 102 Shannon v R [2006] NSWCCA 39 Attorney General's Application No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 R v Grube [2005] NSWCCA 140 R v Way [2004] NSWCCA 131; 60 NSWLR 168 CASES CITED : MLP v R [2006] NSWCCA 271; 164 A Crim R 93 R v King [2009] NSWCCA 117 R v Knight [2007] NSWCCA 283; 176 A Crim R 338 R v Woods [2009] NSWCCA 55 R v AJP [2004] NSWCCA 434; 150 A Crim R 575 RJA v R [2008] NSWCCA 137 R v Davis [1999] NSWCCA 15 R v PGM [2008] NSWCCA 172

The remaining matter to which I wish to refer which was raised in argument and therefore should be dealt with is the type of sexual intercourse involved. It was urged on me that this was not penile/vaginal intercourse and therefore the acts which constitute the offence should be regarded as less heinous than if that had been the case. It seems to me that whilst it may be true that penile/vaginal intercourse does involve a more heinous form of the offence that this offence was nevertheless quite a significant serious offence. The action of requiring a person to have oral intercourse with you and in this case the act of fellatio really degrades the person concerned. I do not regard it as being simply a technical offence. It seems to me that it carries with it very considerable criminality. I think whilst it may not amount to the same criminality as penile/vaginal intercourse it would certainly, in my view, far exceed the criminality involved in digital penetration. 17 Before dealing with the grounds of appeal I should express my view that the course adopted by the Crown, apparently as a result of negotiations in the Local Court, to place two of the offences on a Form 1 appears on the information before this Court to have been inappropriate. These were distinct offences against three vulnerable complainants and each was a separate act of criminality of great seriousness. In fact one of the offences on the Form 1 was objectively more serious than the offence for which the applicant was being sentenced because the child was aged 8 years. The younger the child, the more serious the offence: Shannon v R [2006] NSWCCA 39. Had the applicant been sentenced for each of the offences, there would clearly have been a measure of accumulation as the offence against any one child could not have embraced the criminality involved in the offence against another child. 18 I appreciate that in some cases of child sexual assault there may be concerns about proving a particular charge were it not placed on a Form 1, but in light of the very recent complaints made in this case and the admission allegedly made to the two mothers, a conviction would have been highly likely. The use of the Form 1 reduced considerably the punishment that could be imposed upon the applicant because of the limited use that could be made of the matters being taken into account upon proper sentencing principles in accordance with the guideline judgment on s 33 of the Crimes (Sentencing Procedure) Act 1999, Attorney General's Application No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146. This is notwithstanding that taking offences into account can result in a substantial increase to the sentence otherwise appropriate for the offence for which sentence is passed: R v Grube [2005] NSWCCA 140 and that in a general way the sentence imposed represents the whole of the criminality before the court. 19 But the sentence imposed for one offence even taking the other two offences into account, could not replicate the sentence that would have been imposed had the applicant been sentenced on all three charges. The use of the Form 1 meant that the sentence imposed could not, in my opinion, sufficiently reflect the seriousness of the totality of the applicant's conduct nor could it properly denounce the fact that three children had been abused in the way that they were. This is particularly so having regard to the fact that one of the offences also carried a standard non-parole period. The significance of the standard non-parole provisions loses its impact when the offence is placed on a Form 1. I am of the opinion that generally it is inappropriate to have a matter taken into account that carries a standard non-parole period. Of course, there may be situations where that procedure can be justified, for example where the offender is being sentenced for a number of offences similar to those placed on the Form 1. 20 The first ground of appeal complains that the Judge failed to determine the level of the objective criminality in the offence. The submission is that, as offences under s 66A can cover a wide range of sexual activity and have various aggravating factors, the judge should have found the offending on this occasion to be "well below the mid-range of objective seriousness". It is noted that the only reasons given by the judge for departing from the standard non-parole period were the applicant's age and plea of guilty. 21 I believe the ground has substantial merit. The final paragraph of the sentencing remarks was as follows:

There are two final matters to which I wish to refer. The first is that in imposing the sentence I have, of course, taken into account the two offences set forth on the Form 1. The second matter is this, having regard to the fact that this offence carries a standard non-parole period I have considered the question required to be posed by the cases of R v Way and R v Shi, viz: "are there good reasons for not imposing the standard non-parole period?" In my view on the facts of this case there are. Those reasons are as follows; first, there's the plea of guilty which was entered at the earliest reasonable opportunity. Second, there is the fact of your advanced years. So for those reasons I have declined to impose a standard non-parole period. I indicate that I have nevertheless, in accordance with the authorities, used it as a guide post in relation to the sentence that I have imposed. 22 With respect to the sentencing Judge, he did not approach the existence of a standard non-parole period in accordance with the authorities to which he referred in that paragraph. The question that his Honour posed, derived from R v Way [2004] NSWCCA 131; 60 NSWLR 168, is not answered, as his Honour thought, simply by referring to subjective factors. The relevant passage from Way is as follows:

Nowhere in his sentencing remarks did his Honour deal with (i) in paragraph [118]. 23 It is unnecessary for present purposes to indicate yet again in detail the steps that a sentencing court is to take in deriving the appropriate sentence to be imposed where there is an applicable standard non-parole period. They were set out in MLP v R [2006] NSWCCA 271; 164 A Crim R 93 and have been referred to with approval in numerous decisions of this Court. They were recently referred to in R v King [2009] NSWCCA 117 a case involving s 66A and where there were matters on a Form 1. The Court stated:

It is clear that these steps are to be taken whether or not there has been a plea of guilty. 24 This Court has frequently pointed out that the sentencing court must make an assessment of the objective seriousness of the offence with some specificity: R v Knight [2007] NSWCCA 283; 176 A Crim R 338. In R v Woods [2009] NSWCCA 55 this Court stated:

A failure to approach the task in this way has resulted in this Court finding that the sentencing discretion has miscarried. Although this has generally resulted in an error being identified upon a Crown appeal, the same must apply to an offender's appeal. 25 As the Crown has pointed out, the Judge did describe the conduct as "quite a significant serious offence" and as comprising "very significant criminal activities". He also embarked upon a consideration of whether the conduct was more or less heinous than other types of sexual conduct falling within the scope of the section. But he never made any attempt to assess where the objective seriousness of the particular conduct fell within the range of offending covered by the section. This of course is not determined simply by the nature of the sexual intercourse. This failure must mean that his discretion miscarried. 26 The Crown submitted that his Honour must have determined that the offending was within mid-range in objective seriousness. I am not prepared to draw that inference. But even if I were, a consideration of the authorities in this Court would suggest that such an assessment would have been erroneous. 27 The relevance of the standard non-parole period in s 66A offences was considered in R v AJP [2004] NSWCCA 434; 150 A Crim R 575. That was a Crown appeal against a sentence imposed after a plea of guilty for an offence of fellatio involving an 8 year old girl. Remarkably neither counsel drew his Honour's attention to what is a leading case on the standard non-parole period and one that was highly relevant to the factual situation that was before his Honour. 28 Counsel for the applicant at the sentencing hearing stated that the only relevant decision he could find was RJA v R [2008] NSWCCA 137, a case that incidentally refers both to MLP and AJP but was concerned with penile and digital penetration. However counsel did not have a copy of the decision but merely "a summary from the Public Defender's Office". Although the Crown offered to obtain a "full copy", it does not appear that one was provided to the judge. His Honour appears to have thought that RJA was a Crown appeal, which it was not. However his Honour referred to the sentence imposed in that case, a non-parole period of 13 years, and expressed the view that it was "a significantly more serious case than this". 29 It is unfortunate indeed that neither of the parties provided the Judge with the assistance to which he was entitled by a proper reference to decisions of this Court that might have informed his Honour first as to the appropriate way to approach the task before him and secondly the relevant matters that he had to consider, for example the relevance of the type of intercourse. Reference was made during addresses to the decision in R v Davis [1999] NSWCCA 15 in relation to the seriousness of different forms of intercourse, but that decision and this issue had been reconsidered in AJP. 30 In my opinion the first ground of appeal is made out and this Court must re-sentence the applicant. 31 On the face of it the sentence imposed by the Judge, taking into account the standard non-parole period and the offences on the Form 1, appears to be within the range available to him. This is especially so having regard to the seriousness of the offences on the Form 1 and the standard non-parole period of 15 years for the offence for which sentence was imposed. A non-parole period of 9 years is a substantial reduction from the standard non-parole period even after a plea of guilty. But an examination of relevant cases in this Court leads strongly to the conclusion that the sentence was excessive. 32 In AJP the complainant's uncle, aged 22 at the time of the offending, had forced the child as punishment for her misbehaviour to fellate him and then to sit on his lap upon his exposed penis. He was sentenced for an offence contrary to s 66A relating to the fellatio and an indecent assault that was taken into account on a Form 1. The Crown appeal was allowed and the respondent sentenced to imprisonment for 5 years with a non-parole period of 2 years 6 months. 33 In that case the judge had concluded that the offence was in the mid-range of seriousness and on the appeal the respondent challenged that finding. As to that challenge Simpson J stated:

[23] In R v Davis [1999] NSWCCA 15 Wood CJ at CL wrote: [66] In Ibbs v R … the High Court rejected the proposition that each kind of sexual penetration as defined in the section, there under consideration, was to be regarded as neither more nor less heinous than another. The Court said that such a proposition cannot be accepted. It appears to me that any other view would beggar common sense, and that penile/vaginal penetration of a child is significantly more serious than many of the other forms of conduct encompassed within s 66A …

[26] Here, the respondent was not alleged to have used threats or pressure to secure the complainant's compliance, nor to ensure her subsequent silence: there was little if any force or coercion - it seems the respondent relied upon his natural authority as a person in charge of the complainant and her compliance resulted from her acceptance of that authority. The respondent did, however, tell the complainant that she could extricate herself from the trouble she was in for her rowdy behaviour by complying with his demands; and he abused a position of both trust and authority (taking these matters into account does not contravene the principle in R v De Simoni [1981] HCA 31; 147 CLR 383 because there is no aggravated form of the offence which would be constituted by either of those circumstances.) 34 This Court held that the offence in that case was "somewhere below the mid range" of an offence falling within s 66A. It should be noted that in AJP the respondent was both in a position of trust and authority to the child as at the time he was babysitting her while her mother, the respondent's sister, was out. The Court also took into account that the harm to the child was substantial as revealed by the victim impact statement. 35 In MLP the applicant was convicted after trial of one count under s 66A being penile intercourse of the vagina of his daughter aged 9 years. The hymen was torn by the act of intercourse. The offence was treated as an isolated incident. It was held that the offence was of mid range seriousness. Special circumstances were found and the applicant was sentenced by the Court to a term of imprisonment with a non-parole period of 11 years and a balance of term of 5 years. It should be noted that this was a sentence imposed after trial. 36 In RJA this court held that each of two acts of penile intercourse by a father on his daughter who was aged 8 was in the mid range of offending for an offence under s 66A. An offence of digital penetration upon the child was held to be less than mid range. However, the penile penetration was not of the vagina, but of the genitalia, and was committed by the applicant rubbing his penis against her labia. In coming to the opinion that the penile penetration offences were mid range, Spigelman CJ stated at [52]:

The abuse of position of trust by a father, in the overall circumstances of each offence, is entitled to significant weight. The helplessness of a young girl in such a family situation is apparent. The circumstances of the two offences are such that each of the two offences should be found to fall within the middle level of seriousness for purposes of applying the standard non-parole period. In this regard I agree with the substantial emphasis his Honour gave to the fact that these were offences committed by a father against a daughter, in a context where the appellant could not fall to be sentenced on the basis of committing an isolated offence. 37 It should be noted that the Court on allowing the appeal imposed a total sentence of 13 years. But this was a sentence imposed after trial for offences involving two counts of penile penetration by a father upon his daughter. There was no discount for a plea of guilty. 38 R v PGM [2008] NSWCCA 172 the Court was concerned with a Crown appeal in respect of sentences imposed for a number of sexual assault offences committed by a neighbour against a child of the age of 6 or 7. There were three offences contrary to s 66A involving two offences of cunnilingus and one of penile penetration of her vagina to a slight degree. The sentences were imposed after trial. The trial judge found that the offending was less than mid range. Fullerton J stated:

(1987) 163 CLR 447

(1936) 55 CLR 499

(2002) 54 NSWLR 368

[2009] NSWCCA 117

[2008] NSWCCA 137

[2002] NSWCCA 518

[2005] NSWCCA 140

[2009] NSWCCA 55

[2008] NSWCCA 237