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[2013] NSWCCA 146
Court of Criminal Appeal (NSW)
2013-06-05
Beazley P, Hidden J, Fullerton J
Original judgment source is linked above.
Judgment 1BEAZLEY P: I agree with Hidden J. 2HIDDEN J: The applicant pleaded guilty in the District Court to seven counts of sexual intercourse with a child between the ages of 14 and 16, an offence under s 66C(3) of the Crimes Act 1900 which carries a maximum sentence of 10 years imprisonment. On 21 June 2012 he was sentenced to a series of partly cumulative terms of imprisonment, commencing on 21 February 2012 so as to take account of a discrete period of pre-sentence custody. The sentences were as follows: On counts 1 and 2: concurrent fixed terms of imprisonment for 1 year, commencing on 21 February 2012; Counts 3 - 5: concurrent fixed terms of imprisonment for 2 years, commencing on 21 February 2013; Counts 6 - 7: concurrent terms of imprisonment for 3 years, with a non-parole period of 1 year, commencing on 21 February 2014. The aggregate sentence was imprisonment for 5 years with a non-parole period of 3 years. The applicant seeks leave to appeal against those sentences.
Facts 3The victim of the offences was a 15 year old girl, who was the sister of the applicant's partner. The applicant was aged between 28 and 29 years at the time of the offences. The victim moved in to the home of the applicant and his partner late in 2008, and the offences occurred throughout 2009. 4An agreed statement of facts recorded that the first two counts arose from an occasion early in 2009, when the applicant entered her bedroom, woke her, penetrated her digitally and had penile/vaginal intercourse with her. The third, fourth and fifth counts relate to an occasion in May 2009 when, in the bedroom occupied by the applicant and his partner, he penetrated her digitally, performed cunnilingus upon her and again had penile/vaginal intercourse with her. The sixth and seventh counts arose from an occasion in October 2009 when, in that same bedroom, he digitally penetrated her and had penile/vaginal intercourse with her. After each of these occasions the victim felt pain in her vagina. 5After recounting the offences on the first occasion (counts 1 and 2), the statement of facts asserted that the victim engaged in sexual activity with the offender on other occasions. On each occasion the victim was approached by her sister and asked, "Could you do me a favour?" The victim knew this to mean that her sister was asking her to have sex with the offender. This could convey that the seven counts were part of a wider pattern of abuse. However, that is not entirely clear. Neither the sentencing judge nor the Crown prosecutor in this court approached the matter in that way. In the circumstances, it is fairer to treat the seven counts as the only incidents. 6On the second occasion (counts 3, 4 and 5) the sister woke the victim and asked her to do her "a favour." She then took the girl to the bedroom she shared with the applicant, where the offences occurred in her presence. On the third occasion (counts 6 and 7) the victim wanted to go to a party, and her sister told her that the applicant had said that she would be allowed to do so if she would come home and "do a favour" for him. The offences occurred after she returned home, when the sister again woke her and asked her if she would "go lay with" the applicant "for a while." 7The sister's behaviour, of course, is disturbing. She was not charged with any offence arising from that conduct, and the circumstances of her complicity are unclear. It was not suggested in this court that her behaviour in any way diminished the applicant's culpability. 8On the first and second occasions the victim was affected by alcohol and cannabis. On the third occasion she had used cannabis earlier in the night. The applicant was drunk on each occasion. 9In assessing the gravity of the offences, the sentencing judge said in his remarks that the applicant's "action in involving and having a relationship with a 15 year old girl while she was in the offender's and his partner's care must place this in at least the middle of the range of sentence." I shall return to this observation, which is the focus of the first ground of the application.
Subjective case 10The applicant had a difficult upbringing and struggled at school. He left home in his early teens and lived on the streets of Sydney, where he came to abuse alcohol and illicit drugs. He has had minimal employment. He has a criminal history comprising various offences, including some offences of violence, although there are no entries for offences of a sexual nature. A matter not referred to by his Honour was that at the time of the incidents the subject of the third to seventh counts the applicant was on bonds for offences of assault and affray, which had been dealt with in a Local Court in February 2009. 11To a Probation and Parole officer who prepared a pre-sentence report, the applicant said that his relationship with the victim's sister had been unstable. He described it as an "open relationship", and claimed to be unaware that the victim was under the age of consent. He acknowledged that his "thought processes were somewhat distorted due to excessive substance abuse ... ." He advanced the same explanation in evidence in the sentence proceedings, but said that he now saw his conduct as "wrong" and expressed his remorse for what had happened. He also gave evidence that he had gained insight into his drug dependence, had been able to moderate his use of drugs, and saw the risk to himself and others by his continued use. His Honour accepted that evidence. 12His Honour allowed a discount of 20% for the applicant's pleas of guilty.
The application 13Counsel for the applicant, Mr Rosser QC, argued the application on three grounds:
De Simoni 14As I have said, in placing the offences in the "middle of the range of sentence" his Honour had regard to the fact that they had occurred while the victim was in the "care" of the applicant and his partner. Mr Rosser submitted that this was tantamount to a finding that she was under the authority of the applicant, an aggravating factor under s 66C(5)(d) of the Crimes Act, characterising the offences as aggravated offences under s 66C(4), carrying the higher maximum sentence of 12 years imprisonment. Mr Rosser noted the provision in s 61H(2) of the Act that "a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person." He argued that his Honour's finding that the victim was under the care of the applicant and his partner fell within that definition, elevating the offences to the aggravated form, so as to be in breach of the De Simoni principle. 15Reading his Honour's remarks as a whole, it does not appear to me that he was using the word "care" as a term of art in this context. It is noteworthy that he spoke of the victim being in the care not only of the applicant but also of her sister. I am satisfied that his Honour was saying no more than that the offences occurred while the victim was being cared for by the applicant and his partner as a member of their household. This was an appropriate observation in the circumstances, and not one which fell foul of the De Simoni principle. Nor, I might add, could it be said that the aggregate sentence reflects an erroneous finding of a circumstance of aggravation under the section.
Individual sentences 16Next, Mr Rosser questioned how it could be that the acts of digital and penile penetration on the second occasion, the subject of counts 3 and 5, attracted fixed terms of imprisonment for 2 years when the same conduct on the first occasion, the subject of counts 1 and 2, attracted fixed terms of only 1 year. Moreover, he noted, the same conduct on the third occasion, the subject of counts 6 and 7, resulted in head sentences of 3 years. This pattern of sentence, he argued, was inconsistent with the approach required by Pearce v The Queen [1998] HCA 57, 194 CLR 610, in the joint judgment at [44], requiring a sentencing court to fix an appropriate sentence for each offence before considering questions of accumulation, concurrence and totality. 17I appears to me, however, that his Honour was adopting the practical approach to the sentencing exercise sanctioned in the joint judgment in Johnson v The Queen [2004] HCA 15, 78 ALJR 616, at [26] by lowering some of the sentences and aggregating them for determining the time to be served. Gummow, Callinan and Heydon JJ saw that approach as consonant with Pearce, as did Gleeson CJ at [2]. 18No doubt, the fixed terms which his Honour passed for the first five counts represented the non-parole periods he would have fixed if he had passed sentences with a non-parole period in respect of them. The sentences of 1 year for each of counts 1 and 2 are lenient. The 2 year sentences for each of counts 3, 4 and 5 are less so, but they were directed to be served concurrently and, of course, also embraced the criminality of count 4, the cunnilingus. The sentences of 3 years with a non-parole period of 1 year on each of counts 6 and 7 were appropriate for those offences, and the structure of all of the sentences was such as to produce an aggregate sentence which properly reflected the applicant's criminality. 19In my view, no error has been demonstrated in his Honour's approach.
Manifestly excessive? 20Finally, Mr Rosser submitted that the aggregate sentence is manifestly excessive. He argued that the offences should be viewed as "towards the lesser end of the spectrum", and that it was not apparent that the discount of 20% for the pleas of guilty had been applied to the sentences. 21This submission also must be rejected. As Mr Rosser acknowledged, the significant difference in age between the applicant and the victim demonstrates a breach of trust on his part, and there were a number of offences extending over the best part of a year. After allowing for the 20% discount, and the favourable features of the applicant's subjective case, I consider that the aggregate sentence and effective non-parole period were well within the bounds of the proper exercise of his Honour's discretion. 22Accordingly, none of the grounds of the application has been made out. I would grant leave to appeal but dismiss the appeal. 23FULLERTON J: I agree with Hidden J.
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: 27 June 2013
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