LJ v Regina

CATCHWORDS: CRIMINAL LAW - sentencing - Criminal Case Conferencing Trial Act - material error - re-sentence

Crimes Act 1900 s 61J(1), 61M(1), 61N(1) LEGISLATION CITED: Criminal Case Conferencing Trial Act 2008 s 17 Crimes (Sentencing Procedure) Act s 21A(2)(b), 21A(2)(k), 21A(3)(b), 21A(3)(e), 21A(3)(f), 21A(3)(i), 21A(3)(g), 21A(3)(h) Criminal Appeal Act 1912 s 6(3)

Blanco v R [1999] NSWCCA 121 Do v R [2010] NSWCCA 182 Donaczy v R [2010] NSWCCA 143 Georgopolous v R [2010] NSWCCA 246 R v Blackman and Walters [2001] NSWCCA 121 R v Borkowski [2009] NSWCCA 102 CASES CITED : R v FV [2006] NSWCCA 237 R v H [2005] NSWCCA 282 R v MJR (2002) 130 A Crim R 481 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168 Sivell v R [2009] NSWCCA 286 Tran v R [2010] NSWCCA 183

PARTIES: LJ (Applicant) Crown (Respondent)

COUNSEL: Mr P Hamill SC (Applicant) Mr F Veltro (Respondent)

SOLICITORS: Leonard Legal (Applicant) Solicitor for Public Prosecutions (Respondent)

• 14 - IN THE COURT OF CRIMINAL APPEAL 2009/25308

JAMES J HALL J PRICE J

10 December 2010 LJ v REGINA Judgment 1 JAMES J: I agree with Price J. 2 HALL J: I agree with Price J. 3 PRICE J: The applicant seeks leave to appeal against the sentence imposed in the District Court on 18 February 2010. He pleaded guilty in the Local Court on 18 August 2009 to an offence of aggravated sexual assault contrary to s 61J(1) Crimes Act 1900 and adhered to his plea in the District Court. 4 The circumstance of aggravation was that the complainant was under the age of 16 years. The maximum penalty for an offence contrary to s 61J(1) is 20 years imprisonment. As the offence was committed between 1 December 1996 and 31 May 1997, the standard non-parole provisions do not apply. 5 Three offences on a Form 1, namely two offences of aggravated indecent assault contrary to s 61M(1) Crimes Act and an offence contrary to s 61N(1) Crimes Act were taken into account by the sentencing judge on sentence. All of the offences involved the same complainant and were committed between 1996 and 1997. An offence contrary to s 61M(1) is punishable by imprisonment for 7 years whereas the maximum penalty for a s 61N(1) offence is 2 years imprisonment. 6 The applicant was sentenced to imprisonment with a non-parole period of 16 months commencing on 18 February 2010 and expiring on 17 June 2011 with a balance of term of 10 months expiring on 17 April 2012. 7 The sentencing judge found that the applicant was entitled to a utilitarian discount for the plea of guilty of 15 per cent. 8 The applicant appeals against the sentence imposed on the following grounds: "1. The sentence Judge erred by failing to direct the release of the Applicant at the end of the non-parole period pursuant to s. 50 of the Crimes (Sentencing Procedure) Act 1999.

The sentencing Judge erred in his approach to the Applicant's plea of guilty and in particular: (i) Erred in law by confusing or conflating the utilitarian value of the plea with the fact that the victim was required to give short evidence in the sentencing proceedings. (ii) Erred in law by reducing the discount for the utilitarian value of the plea by reference to the fact that the victim was required to give short evidence in the sentencing proceedings. (iii) Provided the Applicant with an insufficient discount for the utilitarian value of the Applicant's plea of guilty. (iv) Failed to take into account the provisions of the Criminal Case Conferencing Act (NSW) 2008.

The sentencing Judge erred in finding that the Applicant was in a position of trust.

The sentencing Judge erred in his approach to the resolution of the factual dispute as to the period of offending and number of occasions on which indecent assaults had occurred.

A different less severe sentence is warranted and ought to have been imposed."

The first ground of appeal was abandoned in this Court. The proceedings on sentence 9 An agreed statement of facts was tendered. The facts of the offences as detailed in the agreed facts are as follows (AB 20-21): "Between 1 December 1996 and 31 May 1997 the complainant turned 14 years old and the offender turned 22. During this period the complainant and the offender attended a party. They left the party at around 12-1 am and returned to the [...] house. The complainant was in his bed going to sleep when the offender knocked on the complainant's door and entered and got into the bed. The offender moved his hand under the complainant's boxer shorts and fondled the complainant's penis for approximately two minutes. The complainant resisted the offenders actions. This act constitutes the second offence on the Form 1.

The offender then placed the complainants hand on the inside of his boxer shorts onto his penis and guided the complainants hand up and down the offenders penis. The offender then placed the offender's other hand on the complaint's penis and commenced to stroke the complainant's penis up and down. This occurred despite the complainants resistance. This act constitutes the first offence on the Form 1.

The offender then placed his mouth around the complainants penis and moved his mouth up and down the complainants penis. The complainant ejaculated into the offenders mouth. The offender then left the room. This act constitutes the offence to which the offender pleaded guilty in the Local Court.

About two and a half weeks after the above offences and between the 1 December 1996 and 30 th June 1997, at around 2.00 am the offender entered the complainant's bedroom. The complainant was wearing boxing shorts and was already in bed. The offender got into bed with the complainant and put his hand down the complainant's boxer shorts and masturbated the complainant's penis for about five minutes. The offender then left the room.

The complainant states, and the offender admits, that the four offences were not isolated incidents." 10 A Victim Impact Statement was read in court by the complainant. He recounted dropping out of school in Year 10 when aged 15, developing depression and becoming emotionally and mentally unstable because of the sexual abuse. It had been his ambition to obtain a university degree and become a successful businessman but he had struggled to find a decent job. When he was 20 years old he told his family about the abuse and has had counselling since that time. He continues to get anxious and have flashbacks relating to the abuse. At times he finds it a real struggle to cope. 11 The Crown tendered over the objection of Mr Hamill SC (the applicant's counsel) three statements of the complainant in which he had asserted that the applicant had sexually abused him "on a minimum of ten occasions from about July 1996 right up until about July 1997. It went on for about twelve months". The complainant was then required for cross-examination. When asked by Mr Hamill (AB 91): "…what you really know is that it happened, but you're not completely sure about how long it went on for?" The complainant answered: "I know it was longer than five-more than five times. I couldn't give you an exact time. It was more than, I would say, over 12 months, but yes, it was. It happened a lot more than that." 12 It was an agreed fact that the four offences were not isolated incidents. The applicant gave evidence that the offending happened over a period of approximately six months and on probably five or six occasions. He denied that he was lying or trying to minimise his behaviour. 13 When the sentencing judge addressed this issue in his sentencing remarks, he said (AB 15): "The offender did enter a plea, however he disputed the facts in a narrow area, the offender claiming that the offending only occurred over a six month period and not twelve months, nor did it occur more than five times. This dispute required the victim to give evidence. The victim said the events did occur more than five times and over a period of at least twelve months. Having heard from the victim in the witness box and given that he is the victim of the offending with good cause to remember, even if he tries not to remember it, I prefer his recollection to that of the offender, notwithstanding his age at the time of the events of fourteen years. By requiring the victim to give evidence and be cross-examined, the offender lessens the value of his plea and I will allow 15% for the plea's utilitarian value in accordance with R v Thomson and Houlton (2000) 49 NSWLR 383". 14 The sentencing judge said that, "the offender was aged twenty two years and the victim fourteen years. The relationship was built through a family friendship, and as such the offender was in a position of trust." 15 His Honour found that the offence was objectively serious but "not as serious as the criminality contemplated in s 61J of the Crimes Act" and that the offence was "not above or at the mid range of objective seriousness and falls beneath it." 16 Special circumstances, being the applicant's "rehabilitation to date and his need for ongoing rehabilitation" were also found permitting an adjustment to the statutory ratio between the non-parole period and balance of term.

17 It is convenient to summarise here some of the material under the heading "Admissions" in the statement of agreed facts. 18 The complainant confronted the applicant in around June/July 2003 saying "I hate you because you abused me as a child..." The applicant started to cry and apologised to the complainant stating that he knew that he had done the wrong thing, was sorry and felt bad that it had happened. The complainant said that the applicant appeared to be remorseful. 19 In about March/April 2004, the applicant made admissions to the complainant's brothers who had approached him. He acknowledged that he had done wrong and was sorry for what he had done to the complainant and his family. He was in tears and was upset throughout the meeting. The applicant informed the brothers that he was seeking help and was on a 12-week program. 20 On 17 March 2009, during a lawfully intercepted telephone conversation with the complainant, the applicant repeatedly apologised to him and expressed remorse. He told the complainant that he attended counselling sessions for six months on a fortnightly basis to help him to understand the reasons for his behaviour. When interviewed by police, on 16 April 2009, the applicant confirmed the admissions he had made and expressed his regret about what he had done to the complainant. 21 It appears from the complainant's statements that he first spoke to police about these matters on 16 April 2009. Subjective circumstances 22 At the time of sentence, the applicant was 34 years old having been born in April 1975. He was 22 years old and the complainant was 14 years old when the offences were committed. During his evidence, the applicant expressed remorse for his offending and apologised directly to the complainant who was then in court. He has no prior relevant offences. The sole matter on his record related to the "operation of a vessel" with a middle range PCA. 23 A large number of professional and character testimonials were tendered as were reports from Fiona Murray and Sam Borenstein, both psychologists. The applicant's mother and three other witnesses gave evidence before the sentencing judge of the applicant's good character. He had had a successful career as an account executive. The sentencing judge said (AB 13): "[The applicant} did not excel at school, leaving at the high school certificate level. He went to work at the Ramada Renaissance Hotel for five years and completed internal courses in hospitality. He was headhunted by SMB Fleet Management where he has remained for nine and a half years finishing as Chief Account Manager. Character references from other senior persons in the industry are before me and [the applicant's] work ethic and success have been impressive. They all knew of the matters the subject of the sentence proceedings."

24 In a report dated 28 September 2009, Ms Murray recounted that the applicant had approached her for counselling in May 2004 regarding his sexual relationship with the complainant. She saw him for seven sessions. By the seventh session on 15 July 2004, Ms Murray considered that the applicant did not need further counselling. She opined (AB 45): "He was well aware of the wrong-doing of his relationship with [the complainant] and there was no reason to expect a recurrence in any form.

It is my considered opinion that the sexual contact between [the applicant] and [the complainant] occurred as a matter of circumstance due to the emotional needs of [the applicant] at the time, and not because of a pathological sexual interest in children." 25 Ms Murray reported that during the counselling process, they tried to understand what had motivated the applicant at the time. He was raised in an ambitious family, was cared for by nannies due to his mother's career until he was sent to boarding school in Year 7 for two and a half years. He was very unhappy as a boarder. His parents separated when he was 17 years old. During his late adolescence he became exceptionally close to the complainant's family spending large amounts of time with them. The complainant's family had compensated for the lack of warmth and closeness in his own and the applicant had never thought of the complainant as a child. 26 In a report dated 25 November 2009, Ms Murray stated (AB 46): "Since exploration of [the applicant's] sexual history revealed no evidence of homosexual interest or sexual interst [sic] in children beyond his contact with [the complainant], nor any suggestion of obsession or perversion, and given that he has had several sexual relationships with women, some of them long-lasting, I am of the opinion that the likelihood of [the applicant] re-offending is extremely low. I do not regard him as being of any danger to society". 27 Mr Borenstein, in a report dated 19 November 2009, considered that the applicant had been "negotiating a significant period of time in his own life, coinciding with his parents' separation." He had gravitated towards the complainant's family at a time when his own family unit was in a fractured state. He sought stability and was "psychologically regressed." Mr Borenstein considered that there was nothing in the applicant's history "to suggest any propensity towards paedophilia, fixated type." The applicant had expressed genuine concern with regard to the impact his actions had on the complainant and his family. The psychologist opined that the applicant "acted from a regressed psychological condition" and was not "a fixated paedophile". He observed that the applicant had not repeated any such behaviour since 1997 and had been engaged with women of his same age group since that time. Mr Borenstein expressed the opinion that "there is little likelihood [the applicant] would return to the sort of behaviour which brings him before the Court." Dealing with the Appeal 28 As to Ground 2 of the appeal the Crown conceded that a material error had occurred as the sentencing judge's attention was not drawn to the Criminal Case Conferencing Trial Act 2008 which prescribes discounts for guilty pleas to which the Act applies. Section 17(1)(a) provides: "(1) If an offender pleaded guilty to an offence at any time before being committed for sentence, the sentencing court must allow a discount for the guilty plea calculated as follows:

(a) if the court imposes a sentence of imprisonment for a term - a term that is 25% less than the term the court would otherwise have imposed" 29 Both parties agreed in this Court, but not unfortunately before his Honour, that the Criminal Case Conferencing scheme applied to the applicant. As the plea had been entered before committal, s 17(1)(a) mandated a 25 per cent discount for the plea whereas the sentencing judge had allowed a discount of 15 per cent. In Do v R [2010] NSWCCA 182 and Tran v R [2010] NSWCCA 183, Hislop J (with whom McClellan CJ at CL and Barr AJ agreed) accepted the Crown's concession in those cases that the failure by the sentencing judge to give a 25 per cent discount when the Criminal Case Conferencing Trial Act applied was a material error, which required the sentence to be quashed and the applicant re-sentenced. 30 The failure to apply the mandated discount is an error of such materiality as to justify the Court's intervention, having regard to the terms of s 6(3) Criminal Appeal Act 1912. I am satisfied that "some other sentence…is warranted in law and should have been passed." The applicant is to be re-sentenced. 31 There is another reason for upholding this ground of appeal. The sentencing judge in the passage quoted at [13] above considered that because the complainant was required to give evidence and was cross-examined, the utilitarian value of the plea was lessened. It was, however, the crown advocate who raised the issue of how often the abusive conduct had occurred. As it was an agreed fact that the four offences were not isolated incidents, it was unnecessary for this issue to be raised. The tender by the crown advocate of the complainant's statements placed the applicant in a difficult position and compelled the cross-examination of the complainant, which the applicant had no desire to do. Very little court time was devoted to this issue. In the circumstances the applicant should not have been penalised by a reduction in the amount of the discount for the utilitarian value of the plea which the sentencing judge otherwise considered to be appropriate. 32 Whilst it is unnecessary to deal with the other grounds of appeal, I propose to make brief observations about Grounds 3 and 4. The focus of the complaint in Ground 3 is that the sentencing judge erred in finding that the applicant was in a position of trust which is an aggravating factor both at common law and under s 21A(2)(k) Crimes (Sentencing Procedure) Act. I am not persuaded that the sentencing judge considered in the passage quoted at [14] above that the applicant was in a position of trust which he abused, such that it was a matter of aggravation. It seems to me that his Honour was responding to the Crown submission on sentence that whilst the applicant was not in a "formal position of trust" he nevertheless held a position of some trust within the family. I would reject Ground 3 of the appeal. 33 As to Ground 4, the asserted error was that his Honour erred in failing to explain how he could prefer, in the passage quoted at [13] above, the complainant's evidence and by applying the wrong standard of proof. The sentencing judge had the advantage of seeing the applicant and complainant giving evidence. He considered that the complainant had "good cause" to remember the times that he had been the victim of the applicant's offending. He did not simply rely on the appearance of the witnesses but identified a reason for his conclusion. Furthermore I am not persuaded that his Honour, an experienced sentencing judge, did not apply the criminal standard of proof to the factual dispute. I would reject Ground 4 of the appeal. Re-sentence 34 As the offence was committed between 1 December 1996 and 31 May 1997, the applicant is to be sentenced in accordance with the sentencing practice as at the date of the commission of the offence and not as presently prevails: R v MJR (2002) 130 A Crim R 481. An analysis of where the offence lies on the range of objective seriousness of an offence contrary to s 61J(1) Crimes Act in accordance with the principles in R v Way (2004) 60 NSWLR 168 is not required as a standard non-parole period did not apply in 1996 or 1997. In my respectful opinion, the sentencing judge's finding that the offence was below the mid-range of objective seriousness was unnecessary: Sivell v R [2009] NSWCCA 286; Georgopolous v R [2010] NSWCCA 246. 35 The maximum penalty for an offence contrary to s 61J(1) Crimes Act is 20 years imprisonment. It cannot be doubted that an act of fellatio committed by an adult, albeit 22 years old, on a 14-year-old is an objectively serious offence. The acts of indecency, being offences 1 and 2 on the Form 1, which preceded the fellatio are also objectively serious. The facts disclose that the complainant resisted the applicant's advances but nevertheless he persisted. I also take into account the objective seriousness of the forced masturbation being the third offence on the Form 1. It is an agreed fact that the four offences were not isolated incidents. The offending, however, was not accompanied by violence or threats of violence. As a consequence of the offences, the complainant's life has been damaged. He continues to suffer from psychological and emotional injury. 36 Whilst the offender took advantage of the close relationship that he had with the complainant and his family, I do not find that he was in a position of trust which was abused: s 21A(2)(k) Crimes (Sentencing Procedure) Act. The sentencing judge found as a mitigating factor that the offences were not part of any planned or organised criminal activity and I do not propose to find otherwise: s 21A(3)(b) Crimes (Sentencing Procedure) Act.

37 In re-sentencing, I have regard not only to all of the material before the sentencing judge but to the applicant's affidavit sworn 17 November 2010. Without detailing all of its contents, it appears that the applicant recently entered into a Deed with the complainant and has made a compensation payment to him. Mr Borenstein confirms, in a report dated 16 November 2010, that prior to sentence the applicant attended therapy sessions and developed an appreciation of the nature of his offending. The psychologist assesses the likelihood of the offender re-offending as being "as close to nil as is possible to predict". Upon release, the applicant intends to continue therapy with Mr Borenstein, who refers to the applicant maintaining therapy contact for at least twelve months post release. Whilst in custody, the applicant has completed various courses and has neither been involved in incidents of violence nor come under adverse notice. 38 The applicant does not have any relevant prior criminal convictions which entitles him to leniency: s 21A(3)(e) Crimes (Sentencing Procedure) Act. I also find that prior to his offending, he was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act. I also find that he established, through hard work, a successful business career and was highly regarded by his professional colleagues. 39 Another mitigating factor is that the applicant has shown remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act. When the complainant first confronted him in 2003, he acknowledged the harm that he had done and accepted responsibility for his actions. He did not attempt to conceal the offences when spoken to by the complainant's brothers in the following year but adhered to the regret and sorry which had been expressed to the complainant. The genuineness of the applicant's remorse was demonstrated by the consultations with Ms Murray in 2004. When questioned by police, the applicant admitted his crimes. I do not think that the strength and genuineness of the applicant's remorse was diminished by the complainant being required to give evidence. His remorse has been further demonstrated by his apology to the complainant during the sentencing proceedings and by the payment of compensation. 40 All of the material before the Court points to the applicant having strong prospects of rehabilitation and being unlikely to re-offend. Ms Murray considered in 2004 that the sexual contact occurred due to the applicant's emotional needs at the time and not because of a pathological sexual interest in children. In her opinion, further counselling was not required. Mr Borenstein is confident that there is little likelihood of re-offending. The applicant's self-motivation in 2004 in seeking the help of the psychologist, his acknowledgment of the offences, his successful business career and lack of offending since 1997 support a positive finding. It seems that he is to be re-employed on a full-time basis by his employer at the time of the sentence when he is released from gaol. I conclude on the balance of probabilities that the applicant has strong prospects of rehabilitation and is unlikely to re-offend which I take into account as mitigating factors: s 21A(3)(g)-(h) Crimes (Sentencing Procedure) Act. By reason of these findings, I give modest weight to specific deterrence. 41 Weight, however, must be given to general deterrence as teenagers are entitled just as much as young children to protection from sexual abuse by adults. 42 Mr Hamill submitted to the sentencing judge that during the significant period of delay between the commission of the offences and his being charged, he had substantially (if not totally) rehabilitated and had had the possibility of charges looming over his head for many years. The sentencing judge's sentencing remarks do not disclose that he dealt with this submission. 43 The delay in the prosecution of this case may be explained by the complaint being made to police in April 2008. No evidence was forthcoming from the applicant in the sentencing proceedings that he had suffered as a result of the delay. His successful business career does not appear to have been adversely affected. Nevertheless, delay may be taken into account in an offender's favour where there has been demonstrated progress towards rehabilitation during the intervening period: Blanco v R [1999] NSWCCA 121 at [16]; R v Blackman and Walters [2001] NSWCCA 121 at [42]. I have already taken into account the applicant's consultations with Ms Murray and the progress he made when considering remorse and rehabilitation. I do not propose to double count this factor. 44 The applicant is entitled to a discount of 25 per cent for the utilitarian value of the plea. 45 Notwithstanding the strength of the mitigating factors, the offence remains serious. No sentence other than a term of imprisonment is appropriate. I would propose that the undiscounted starting point of the sentence, taking into account the three matters on the Form 1, is 2 years. Accordingly, the full term of the sentence is 18 months. 46 Mr Hamill invited the Court to suspend the sentence. As the sentence is less than 2 years, that sentencing option is available but must, in my view, be rejected, as it would not reflect the objective seriousness of the offence. 47 The sentencing judge's determination of the applicant's need for ongoing rehabilitation as a special circumstance was well founded and I make the same finding. 48 I propose the following orders:

1. Application for leave is granted and the appeal is allowed. 2. The sentence imposed in the District Court is quashed. 3. In lieu, the applicant is convicted and sentenced to a term of imprisonment of 18 months which is to consist of a non-parole period of 12 months which commenced on 18 February 2010 and expires on 17 February 2011 and a balance of term of 6 months commencing on 18 February 2011 and expiring on 17 August 2011. 49 The applicant is to be released on parole on 17 February 2011.

10/12/2010 - Typographical error - Paragraph(s) 31

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