[2006] NSWCCA 381
R v MJN [2002] NSWCCA 129, (2002) NSWLR 368
Rosenstrauss v R [2012] NSWCCA 25
RWB v R [2008] NSWCCA 93
Source
Original judgment source is linked above.
Catchwords
[2006] NSWCCA 381
R v MJN [2002] NSWCCA 129, (2002) NSWLR 368
Rosenstrauss v R [2012] NSWCCA 25
RWB v R [2008] NSWCCA 93
Judgment (4 paragraphs)
[1]
Solicitors:
Legal Aid Commission of NSW (Appellant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)
File Number(s): 2010/267441; 2011/400259
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 23 February 2012 and 22 November 2012
Before: Conlon DCJ
File Number(s): 2010/267441; 2011/400259
[2]
Judgment
MEAGHER JA: I agree with RS Hulme AJ.
HIDDEN J: I agree with RS Hulme AJ.
RS HULME AJ: On 23 February 2012, Conlon DCJ sentenced the Applicant in respect of 12 sexual offences to which he had pleaded guilty. The effective sentence imposed was one of 10 years including a non-parole period of 7 years and 3 months concluding on 13 July 2018.
On 22 November 2012, his Honour sentenced the Applicant in respect of a further eight sexual offences to imprisonment for an effective period of 14 years including a non-parole period of 10 years both such periods commencing on 13 July 2018.
The effective overall sentence was thus one of 21 years and 3 months including an effective non parole period of 17 years and 3 months.
Annexed to these reasons is a summary of the offences with which his Honour was concerned and of the individual sentences imposed. The victims had a variety of relationships with the Applicant.
The 12 offences dealt with by the decision of February 2012 were committed against eight victims and, with one exception, between the mid-1970s and mid-1980s. One offence was committed in 2002. LB and SB were two children whose father had died. The Applicant boarded with the children and their mother for a number of months.
SN and MN and RN were daughters of a friend of the Applicant. Their parents separated and the Applicant then moved into their home. KB and PB were children of a cousin of the Applicant. Their parents also separated and the Applicant would visit their home.
DM (who was the subject of the offence committed in December 2002) commenced to live with her boyfriend at age 14. The boyfriend's mother did not approve of this arrangement and DM went to live with the Applicant. On one occasion whilst she was staying with the Applicant, she awoke to him touching her breasts and inner thighs underneath her clothing.
The eight offences dealt with in November 2012 involved four children, D, R, H and K, of a woman with whom the Applicant had a relationship and, prior to the fifth offence in the second indictment, to whom the Applicant was married. During the time during which the Applicant was abusing these children he made threats to them not to tell anyone what he was doing or he would cause them harm. The third and fourth offences on the second indictment, were committed in the presence of the children's mother who masturbated the Applicant in the course of the third offence.
The circumstances referred to in the immediately referred to paragraphs gave the Applicant access to the complainants mentioned. Some of the offences happened in their homes and some when the Applicant, who from time to time drove the children around, had access to them. The charges were representative. The Applicant was a regular offender against most, if not all of the above complainants. It was not suggested during the appeal that his Honour had taken into account the fact of uncharged acts inappropriately.
The ground on which the Applicant seeks leave to appeal is that "the overall sentence and effective non-parole period are unreasonable or plainly unjust". More specific complaints made on behalf of the Applicant in argument were that his Honour had wholly accumulated the effective later sentence on the earlier one, that the effective total non-parole period was approximately 81% of the effective total sentence and that, despite recognising that he should take into account sentencing patterns at the time of the offences, in the aggregate sentences he imposed, his Honour did not do so. There was no attack on the individual sentences.
In his written submissions, counsel for the Applicant also pointed out that Conlon DCJ had imposed no non-parole period during the period 12 April 2019 (when that for offence 7 on the second indictment ended) and 13 July 2019 (when the sentence for count 8 on the second indictment commenced).
In written submissions, counsel for the Crown asserted that Conlon DCJ had imposed no sentence with a non-parole period covering the period between 13 April 2018 and 12 July 2019 and went to observe that the sentences imposed by his Honour should be adjusted to rectify this.
In fact, for counts 1 and 2 on the first indictment, Conlon DCJ imposed sentences of 3 years and 3 months including non-parole periods of 6 months from 14 January 2018 and in respect of count 7 on the second indictment his Honour imposed a sentence of a fixed term of 9 months from 13 July 2018. The next commencing date - for the sentence imposed on count 8 on the second indictment - was 13 July 2019. Thus counsel for the Applicant was correct and counsel for the Crown wrong.
There is no doubt that sentencing law and practices at the time of the Applicant's offences were different from the present position and the Applicant was entitled to have taken into account the sentencing practice at the time of his offending - R v MJR [2002] NSWCCA 129; 54 NSWLR 368; PWB v R [2011] NSWCCA 84; Magnuson v R [2013] NSWCCA 50
That observation is subject to the proviso that the sentencing court is made aware of the previous sentencing practice and furthermore that since Power v The Queen [1974] HCA 26; 131 CLR 623, it has been clear that a non-parole period represents the minimum period of imprisonment required to be served by an offender having regard to all of the purposes of justice.
Only limited material was put before Conlon DCJ as to the practice prevailing at the time of the Applicant's offending. However, it is clear as Button J pointed out in Magnuson v R at [143] that the courts' approach to questions of accumulation and concurrence was "more lax" prior to the High Court's decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610 and that in about 1982 non-parole periods were commonly fixed at between a third and a half of total sentences. See AJB v R [2007] NSWCCA 51 (2007); 169 A Crim R 32 at [39]; RWB v R [2008] NSWCCA 93; 184 A Crim R 453 at [36]; Rosenstrauss v R [2012] NSWCCA 25 at [9].
The effective sentence imposed in November 2012 was fully accumulated on the effective non-parole period imposed in February of that year. It is unusual for that to occur without some adjustment of the ratio between non-parole periods and head sentences and his Honour gave no reason for doing what he did in that regard. The effect was to make a balance of term calculated in the course of setting one set of offences "do the work" for the totality of non-parole periods. On the other hand, the balance of term of 4 years as set is by no means a short period although again, his Honour gave no reason for adopting it.
However, it is proper also to have regard to the fact that within each effective sentence there had already been a substantial degree of concurrency. Thus the simple aggregates of the non-parole periods and full terms imposed in February 2012 were respectively 15 years 3 months and 26 years 6 months, ie more than double the effective sentence imposed.
The corresponding figures for the offences dealt with in November are 19 years 9 months and 32 years 3 months. As has been said, the effective sentence imposed in November was 14 years including a non-parole period of 10 years.
Against this complicated background the application of the sentencing practices of the past is by no means easy. Having regard to the number of victims and the magnitude of his criminality otherwise, it would not be appropriate to simply reduce the Applicant's non-parole period to one-third to one-half of the 21 years and 3 months total sentence. On the other hand, the 81% of the effective total sentence that the effective non-parole period represents is so high that it argues for some reduction, particularly as Conlon DCJ gave no reasons for the result.
The magnitude of the Applicant's criminality argues against any reduction in his sentence and certainly if his offences had occurred in the recent past, I would not be disposed to make any reduction. However, to reflect in some measure the more lenient sentencing regime that prevailed at the time of the Applicant's offending, I think that there should be some reduction in the effective non-parole period. Arguing in the same direction is the fact that the Applicant was prosecuted many years after his offending, notwithstanding that a number of his offences were reported to the Department of Community Services and police as long ago as 1979.
The reduction should not be great otherwise the non-parole period would not adequately reflect his offending and accordingly, I would propose that the non-parole period be reduced to 15 years. The accumulation of sentences amounts to special circumstances sufficient to justify the proportion between 15 years and the length of the total sentence.
So does the age of the Applicant - he was born in December 1947 - and the fact that he suffers health issues and that this is his first time in custody.
I appreciate that to the victims, any reduction might seem inappropriate but it must be borne in mind that the severity of a jail sentence is not simply proportionate to its length. As Malcolm CJ said in R v Clinch (1994) 72 A Crim R 301 at 306, "a sentence of 5 years is more than 5 times as severe as a sentence of 1 year." See also R v MAK (2006) 167 A Crim R 159: [2006] NSWCCA 381; Gore v R [2010] NSWCCA 330.
While the delay in his charging and conviction was likely to have been of benefit to the Applicant, he presently has to face the very real prospect of never being released from custody.
The Court should also remedy Conlon DCJ's error in leaving a gap in the non-parole periods he imposed. The orders proposed below will achieve both of these purposes. In formulating them I acknowledge that there is a greater degree of concurrency of some sentences than is usual. However, the complexity of the sentencing exercise makes that course, rather than an alternate one that would have the same result, permissible.
The result will be that the Applicant will be serving non-parole periods that in combination extend from 14 April 2011 to 13 April 2026 and a balance of term that extends to 13 April 2032.
Accordingly I propose:
1. Grant leave to appeal against the sentences imposed by Conlon DCJ on 23 February 2012.
2. Grant leave to appeal against the sentences imposed by Conlon DCJ on 22 November 2012.
3. Dismiss the appeal against the sentences imposed by Conlon DCJ on 23 February 2012.
4. Dismiss the appeal against the sentences imposed for counts 3, 5, 6 and 7 by Conlon DCJ on 22 November 2012.
5. Allow the appeal against the sentences imposed for counts 1, 2, 4, and 8 by Conlon DCJ on 22 November 2012 and quash those sentences.
6. In respect of count 8 dealt with by Conlon DCJ on 22 November 2012, sentence the Applicant to a non-parole period of 2 years to date from 13 April 2019 together with an additional term of 18 months commencing on 13 April 2021.
7. In respect of count 4 dealt with by Conlon DCJ on 22 November 2012, sentence the Applicant to a non-parole period of 4 years to date from 13 April 2022 together with an additional term of 2 years commencing on 13 April 2026.
8. In respect of count 1 dealt with by Conlon DCJ on 22 November 2012, sentence the Applicant to a non-parole period of 2 years to date from 13 April 2024 together with an additional term of 12 months commencing on 13 April 2026.
9. In respect of count 2 dealt with by Conlon DCJ on 22 November 2012 sentence the Applicant to a non-parole period of 2 years commencing on 13 April 2024 together with an additional term of 6 years commencing on 13 April 2026.
10. Record as the date upon which it appears to the Court that the Applicant shall be eligible for parole, 13 April 2026.
Addendum
Subsequent to the publication of the above reasons, the Corrective Services Department drew to the Court's attention that after Conlon DCJ sentenced the Applicant on 22 November 2012, his Honour changed the sentence he had imposed in respect of count 7 on the second indictment by changing the term of imprisonment to one of 12 months, thus eliminating the gap in the non-parole period referred to in [13] above.
Order 4 of this Court's orders of 31 March 2015 deals with the sentence his Honour imposed for that count 7 and in terms which make it irrelevant whether the term of imprisonment ordered by Conlon DCJ was 9 or 12 months. Order 6 made by this Court sentences the Applicant to imprisonment for a period that encompasses the time immediately following the term, whether it be 9 or 12 months of the sentence Conlon DCJ imposed for that count 7.
Accordingly, none of the orders made by this Court needs adjustment in consequence of the information recently provided.
[3]
Count Charge Victim Age Date Sec Max Offence Penalty
1/1 Ind Ass F under 16 LB 9 1/76-10/77 76 6 yrs Cunnilingus while masturbating & ejaculating over complainant 3.25/0.5 yrs
1/2 Ind Ass F under 16 LB 10 10/77-10/78 76 6 yrs Cunnilingus while masturbating & ejaculating over complainant 3.25/0.5 yrs
1/3 Ind Ass F under 16 SB 7 1/76-12/77 76 6 yrs Digital/vaginal penetration, masturbation and ejaculation over complainant 3.25/2 yrs
1/4 Ind Ass F under 16 SB 7 1/77-12/77 76 6 yrs Digital/vaginal penetration, masturbation and ejaculation over complainant 3.25/2 yrs
1/5 Ind Ass F under 16 SN 8 1/80-12/80 76 6 yrs Cunnilingus and masturbation 3.25/2 yrs
1/6 Sex Inter w/o consent, child under 16 SN 11 1/83-12/83 61D(1) 10 yrs Cunnilingus 4/2.75 yrs
1/7 Ind Ass F under 16 MN 10 1/78-12/78 76 6 yrs Touching complainant's genitals and masturbating 2.75/1.5 yrs
1/8 Ind Ass F under 16 MN 11 1/79-12/80 76 6 yrs Rubbing of vagina 2.75/1.5 yrs
1/9 Ind Ass person under 16 RN 5 1/82-12/82 61E(1) 6 yrs Rubbing of genitals 2.5/1.5 yrs
1/10 Act of indecency to F under 16 KB 8 1/78-1/79 76A 2 yrs Display of erect penis 9 mths FT
1/11 Ind Ass person under 16 PB 12 1/84-12/84 61E(1) 6 yrs Masturbation using complainant's hand and ejaculation 1 yr FT
1/12 Agg Ind Assault of person under 16 DM 14 12/02 61M(1) 7 yrs Touching of breasts and inner thighs and masturbating 1 yr FT
2/1 Ind Ass F under 16 D 5 or 6 1972 76 5 yrs Cunnilingus 3/2
2/2 Carnal Knowl F under 10 D 5 or 6 1972 67 25 yrs Penile/ Vaginal intercourse 8/4
2/3 Ind Ass M R 8 or 9 11/77-11/79 81 5 yrs Fellatio while masturbating 3/2
2/4 Buggery R 8 or 9 11/77-11/79 79 14 yrs Penile/Anal intercourse 6/4
2/5 Ind Ass F under 16 D 13 12/79-12/80 76 6 yrs Cunnilingus 3/2
2/6 Carnal Knowl F under 17 D 15 8/82-6/83 73 14 yrs Penile/vaginal intercourse 5/3
2/7 Ind Ass F under 16 H 16 3/83 61E(1) 6 yrs Touching vagina, attempted sexual intercourse 9 mths
2/8 Sex Inter w/o consent K 15 3/82-12/85 61D(1) 7 yrs Fellatio while masturbating 3.5/2
[4]
Amendments
15 May 2015 - Amendment made on 15 May 2015 by the addition of an Addendum consisting of paragraphs numbered 1, 2 and 3 to the end of the judgment.
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: 15 May 2015