MD v R

Court of Criminal Appeal (NSW)|2015-02-03|Before: Gleeson JA, Johnson J, Hall J

Before: Syme DCJ File Number(s): 2012/184651

Judgment

GLEESON JA: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 12 September 2013 following his plea of guilty on two counts of aggravated sexual intercourse with a child under the age of 10 years. The child in question was the applicant's own daughter aged 8, and the circumstance of aggravation is that the child was under the authority of the applicant. The offences were committed in contravention of s 66A(2) of the Crimes Act 1900 (NSW) which provides for a maximum penalty of life imprisonment. There is a standard non-parole period of imprisonment for 15 years.

Ground of appeal

If leave is granted, the sole ground of appeal is: The judge erred in imposing sentences that failed to reflect a finding of special circumstances.

Circumstances of the offences

The sentencing judge proceeded on the basis of a statement of agreed facts. The following is taken from her Honour's summary.
The applicant is the father of the victim. He and his wife have three children. At the time of sentencing, the daughter who is the victim of these offences was aged nine years, and the two sons were aged seven and one year old. The applicant described himself as having an active role in their upbringing.
On 11 June 2012 the child was bathing in their home. The applicant came into the bathroom as she got out of the bath and was starting to get dressed. The applicant pulled his pants down to just above his knees and helped the child put on her singlet and tee shirt. The applicant then rubbed the child's head and forced her head down to the applicant's penis and inserted his penis into the child's mouth. The child pulled back and the applicant rubbed the child's head again and inserted his penis into her mouth. The applicant's penis was in the child's mouth for a few seconds altogether. (This conduct constituted the offence on Count 1.)
The applicant then put his hands on the victim's hips and turned the child around. He inserted his penis between the child's buttocks and rubbed it up and down. (This conduct constituted the Form 1 offence.)
The applicant then sat down on the toilet and pulled the child towards him on the toilet and forced the child's head towards his penis and again inserted his penis into the child's mouth for about two seconds. (This conduct constituted the offence on Count 2.)
The child pulled away and as she did the applicant's wife walked into the bathroom. She observed the child naked from the waist down and the applicant pulling his pants up. She asked what was going on and the applicant stated "You should have knocked first". The applicant claimed that nothing had happened and that he was going to have a shower.
Later that evening the applicant's wife asked him "Did you do it" and he said "Yeah". The applicant left the family home that evening. He was arrested on the following day. He participated in an electronically recorded police interview during which he made full admissions. During the course of the interview the applicant detailed his actions after the child pulled away saying he physically positioned the child so that he could position his penis in between her buttocks (leading to the Form 1 offence). He admitted that some days prior to this offence he had performed a similar act on the child but he denied any other acts.
The applicant made the same admissions to the psychologist, Ms Pratley, who interviewed him for a report tendered to the Court on his behalf. However, he told the psychologist that the prior similar acts had occurred "a few weeks" before these offences.
The applicant pleaded guilty to all of these offences in the Local Court and he was committed for sentence in the District Court.

The applicant's subjective case

Subjective matters taken into account by the sentencing judge included the age of the applicant, 36 years at the time of sentence; his background, including that he had a "fairly normal upbringing"; that he did not have a record of prior criminal convictions; and that whilst his cognitive ability was assessed by the psychologist to be low to average, and he was thought to be suffering from marked distress, his offending was not predicated upon any psychological distress.
The applicant had been unemployed for two years at the time of the offences.
The applicant did not give evidence. Nonetheless her Honour took into account his guilty pleas as evidence of remorse, as well as his candidness with the psychologist and the police. Her Honour noted that the offending was not isolated having regard to the applicant's admission of the prior conduct and this reduced the leniency considerations.
The judge referred to the observation of the psychologist that the applicant's anticipated social isolation upon his eventual release from custody was a potential risk factor in reoffending, which may need to be guarded against. Her Honour accepted that there were no reported issues which would otherwise impinge on the applicant's ability to access and benefit from in-custody treatment programs and this factor pointed towards a reduced risk of reoffending.
The judge noted that the applicant had expressed to the psychologist feeling ashamed of his actions and took this to be an acceptance of responsibility. Nonetheless, the applicant also expressed to the psychologist his belief that he did not need treatment. The psychologist observed that the applicant's present attitude and his denial of any sexualised thinking about the child was unlikely to be true.
The judge recorded that the psychologist's assessment was that the applicant presented a "low to moderate risk of reoffending". (The actual assessment of the psychologist was that of a "low risk" of reoffending: AB at 161.) Given the qualifications to the risk assessment expressed in the psychologist's report and the range of unresolved issues (including the matters referred to in [18] and [19] above, and [21] below), an assessment of a low risk of sexual recidivism might be considered unduly generous to the applicant. In any event, no complaint was made by the applicant in this Court concerning the sentencing judge's finding.)
The judge accepted that the applicant may have good prospects of rehabilitation if he participated in treatment while in custody and noted the applicant's expressed willingness to do so. Against this, her Honour observed that there were risk factors including the applicant's isolation from his family as a consequence of the offences that should be guarded against upon his release. The judge considered that the applicant's previous good behaviour suggested that there may be hope with respect to his prospects of rehabilitation.

The judge's reasons

The judge found that Counts 1 and 2, which both involved forced fellatio, were offences "at a level of moderate objective seriousness lower than middle range, for the very serious offence charged" (ROS 7.7). In expressing herself in this way, her Honour emphasised that this was not to minimise the seriousness of the applicant's behaviour but simply to acknowledge that the category of offences charged covered a wide range of offending conduct against very young children. Her Honour had earlier observed that the applicant's conduct was a very serious example of sexual intercourse and degrading to the child (ROS 3.3). The judge also noted that the offences appeared to have been opportunistic but not an isolated one (ROS 3.8).
Her Honour found that the offences were aggravated by the breach of trust and the fact that the victim was under the applicant's authority. Her Honour stated that: There can be no greater breach of trust than the breach of a father to a child and this will be taken into account as part of the serious breach identified by the fact that she was under his authority and his daughter and the fact that the offence occurred in the home. (ROS 5.4)
While the events were momentary for each individual offence, her Honour observed that the course of the applicant's conduct must have continued for some minutes (ROS 5.9).
Her Honour found that the Form 1 offence was a very serious example of indecent assault of a child considering the age of the victim and the nature of the assault near the victim's genital region (ROS 3.10-4.2). Her Honour accepted that the sentence in respect of Count 2 must reflect the serious nature of the Form 1 offence (ROS 8.1).
The judge took into account the victim impact statement from the child which spoke of her emotional hurt and confusion. Her Honour observed that it was well-known that the anguish suffered by victims of such crimes and the potential consequences for such victims often were not fully recognised for years (ROS 6.3).
The judge allowed a 25% discount for the utilitarian value of the applicant's early guilty pleas.
The judge determined that the offences should be sentenced separately, but took into account the short time period between the offences and that the offending was in effect a single course of conduct (ROS 7.9). Her Honour also determined, as conceded by the applicant's counsel, that some accumulation was appropriate (ROS 7.9).
The judge referred to the need for specific and general deterrence and denunciation of the offending conduct as being important sentencing considerations (ROS 10.8). Against this her Honour noted that the long-term protection of the community, and the rehabilitation of the applicant, must also be considered and that promoting his rehabilitation was a sentencing consideration (ROS 10.9-11.1). Her Honour also acknowledged that the maximum penalty and the standard non-parole periods were to be used as a guide in sentencing (ROS 11.3).

Finding of special circumstances

The judge found special circumstances under s 44(2) of the Sentencing Act to provide for the applicant's supervision upon his release in order to promote his rehabilitation and, to a "minor" extent, to reflect the accumulation of the sentences for Counts 1 and 2. The Crown accepted before the sentencing judge that such a finding could be made on the latter basis.
Her Honour's finding was in the following terms: The psychologist observes that his attitude at present and his denial of any sexualised thinking about the child is unlikely to be true. She observes "His thinking in this regard is reflective of the cognitive distortions that are common in untreated offenders". It is a positive observation that the offender is willing to participate in in-custody treatment. His engagement will and should in due course inform the parole authorities when they are considering any future application for parole after he has completed his minimum term. This is a matter that will be reflected in the finding of special circumstances and the recommendation that he be released on parole in slightly less than the statutory period but only after consideration of his commitment to engage in counselling as recommended in the psychologist's report and his engagement with in-custody counselling. These matters are difficult to predict at this stage. [Emphasis added.] (ROS 9.2-9.6) Later in her remarks, her Honour said: When considering the appropriate ratio of non parole to parole period the personal circumstances of the offender are relevant. I have already noted the circumstances above. For the length of sentence I intend to impose and the fact that this is his first time in custody is not in itself a special circumstance. The offender may have good prospects of rehabilitation if he engages in treatment while in custody. The observable risk factors mentioned in the psychologist's report will require supervision on his release. He is currently assessed as having a low to moderate risk of re-offending. He will require substantial assistance and supervision on his release. Any willingness to engage in out of custody or post custody counselling will also be a factor that may assist in an assessment of his prospects of rehabilitation and his risk of re-offending. I therefore propose to find special circumstances to some extent. The parole authorities will be in a better position to assess his prospects of rehabilitation when the minimum term expires. If his risk level has been ameliorated by his treatment in custody he should be released after completing about sixty-five percent of his total sentence and serve the balance of his sentence under supervision in the community. [Emphasis added.] (ROS 9.9-10.6)
It is common ground that the periods and the ratios of the non-parole periods to the total sentences imposed by her Honour are reflected in the following table: Non-parole period Parole period Ratio Total Count 1 6 years 9 months 2 years 3 months 75% 9 years Count 2 7 years 2 months 2 years 7 months 73.5% 9 years 9 months Total 7 years 8 months 2 years 7 months 74.8% 10 years 3 months

Submissions

The applicant contends that the sentencing judge found special circumstances based on the applicant's prospects of rehabilitation if he engaged in treatment while in custody; to provide for his supervision upon his release; and, as a minor consideration, to reflect the accumulation of the sentences for Counts 1 and 2.
The applicant submits that neither the overall sentence, nor the individual sentences, reflects any meaningful departure from the "statutory proportion", being a reference to the 3:1 (or 75%) proportion that s 44(2) of the Sentencing Act proscribes for the non-parole period relative to the term of individual sentences, in the absence of finding of "special circumstances".
The applicant submits that the sentencing judge intended to adjust the 3:1 ratio of non-parole period to parole period reflected in the overall term to "about sixty-five percent", but failed to do so.
The Crown acknowledged that her Honour's remarks on this issue are unclear. Two possible interpretations were suggested by the Crown. One interpretation is that the total non-parole period imposed (74.8% of the total sentence) may reflect her Honour's intention to find special circumstances "to some extent", and that the applicant should be released after serving "slightly less than the statutory period". That her Honour may have only intended to make a limited finding of special circumstances is said to be apparent from her Honour's statement that the parole authorities would be in a better position to assess the applicant's prospects of rehabilitation when he was eligible for release. On this view it was submitted that there was no error in the total non-parole period imposed and that the Court should dismiss the appeal.
The other interpretation is that if her Honour intended that the applicant should be released after serving about 65% of his total sentence, then the total non-parole period imposed did not appear to give effect to that intention. The Crown accepted that on this interpretation, her Honour must have either made a mathematical error, or some other error that resulted in her not manifesting her intention.

Consideration

The principles applicable to the setting of the non-parole period of a sentence under s 44 of the Sentencing Act are well settled. A non-exhaustive statement of principles may be found in Caristo v R [2011] NSWCCA 7 at [26]-[31] (R A Hulme J; Giles JA and Adams J agreeing). Three matters are of particular relevance in the present case.
First, the non-parole period is the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender's subjective circumstances: Power v R [1974] HCA 26; 131 CLR 623 at 627-629; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]; R v Cramp [2004] NSWCCA 264 at [34].
Secondly, simply because there are circumstances which are capable of constituting special circumstances, does not compel the Court to make such a finding and reduce the non-parole period: R v Fidow [2004] NSWCCA 172 at [22]. The decision to find special circumstances is first, one of fact, to identify the circumstances and secondly, one of judgment, to determine that those circumstances justify a lowering of the non-parole period below the statutory ratio: R v Simpson at [73]. The degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge: R v Cramp at [31]; Trad v R [2009] NSWCCA 56; 194 A Crim R 20 at [33].
Thirdly, in setting an effective a non-parole period for more than one offence the focus should not be solely upon the percentage proportions that the non-parole and parole periods bear to the total term: "the actual periods involved are equally, and probably more, important" (Caristo v R at 42 (R A Hulme J)).
Generally speaking where this Court has intervened, it has usually been the case that the sentencing judge has not given effect to a finding of special circumstances through inadvertence or miscalculation. Examples can be found in the cases collected by McClellan CJ at CL in Fina'i v R [2006] NSWCCA 134 at [31]-[40].
The starting point with appeals asserting such error is to ascertain "what can be gleaned of the judge's intention from the sentencing remarks": Maglis v R [2010] NSWCCA 247 at [24] (Howie AJ).
Here the judge found special circumstances, but her Honour's statement in the judgment referring to release of the applicant after completing "about sixty-five percent of his total sentence" if his risk level has been ameliorated by his treatment in custody, is inconsistent with the total non-parole period imposed, being 74.8% of the total sentence. It is also inconsistent with the individual non-parole periods on Counts 1 (75%) and Count 2 (73.5%) as a proportion of the total term of the individual sentences.
The earlier statement by her Honour that the applicant should be released after serving "slightly less than the statutory period" cannot be interpreted as advertence to the end result. This statement does not indicate that the judge realised that the extent by which the non-parole period represented a departure from the statutory norm was as short as it was. Other than this statement, there is nothing to indicate that the judge was aware of, or intended, this result.
I am persuaded that the sentencing discretion miscarried and that the ground of appeal is made out. There should be a grant of leave to appeal.

Is some other sentence warranted in law?

Once error is established it becomes this Court's duty to resentence unless in the exercise of its discretion it concludes that no sentence, whether more or less severe, is warranted and should have been passed: Kentwell v The Queen [2014] HCA 37; 313 ALR 451 at [42].
The Crown contended that if the Court concludes there was error in the exercise of the sentencing discretion, then no lesser sentence is warranted in law: s 6(3) of the Criminal Appeal Act 1912 (NSW). The Crown drew attention to the nature and totality of the applicant's offences and the requirement in s 44(1) of the Sentencing Act that the non-parole period be the minimum period for which the offender must be kept in detention in relation to the offence: Power v The Queen at 627-629.
Aside from reliance upon the matters advanced in support of the ground of appeal, counsel for the applicant relied upon an affidavit from the applicant as to his circumstances post-sentence. Evidence of post-sentence conduct is admissible for the purpose of determining whether a sentence should be substituted under s 6(3) of the Criminal Appeal Act: Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at [124] (Johnson J; McClellan CJ at CL and Adam J agreeing).
Counsel for the applicant submitted that the affidavit evidence demonstrated that the applicant: 1. had engaged with a psychologist since entering custody to speak about his offences and identify programs relevant to his rehabilitation; and 2. had applied for and been referred to the preparatory program for sexual offenders, which will prepare him to participate in sexual offender treatment programs whilst in gaol.
I have had regard to the applicant's subjective circumstances which have been mentioned above.
The applicant's affidavit demonstrates that he has been a responsible inmate with no disciplinary findings made against him: affidavit at [4]. He has taken steps in terms of rehabilitation by engaging with a psychologist and seeking to enrol in appropriate treatment programs: affidavit at [9]. Both of these steps are consistent with the recommendations that were made by the psychologist, Ms Pratley, in her report.
The applicant's expression of regret and shame to the psychologist, and more recently in his affidavit of 19 January 2015, may be taken an indication of an acceptance of responsibility for his conduct.
It is necessary to balance all these matters against the offending.
On his own admissions, this incident was not isolated. The applicant had engaged in similar activity with the same victim either "a few days" or "a few weeks" prior to these offences.
Notwithstanding his low cognitive ability, the applicant appreciated what he was doing was wrong. He was not suffering from any psychological condition at the time of the offending. The offending was obviously very serious. The sentencing judge was correct to observe that the offences involved the most serious breach of trust - they were committed by a father against his daughter, whilst she was under his authority in the family home, and where she was entitled to feel safe.
The traumatic effect of this crime on the victim cannot be understated. So much is apparent from the emotional hurt, confusion, mistrust and anger recorded in the victim impact statement. As this Court has previously observed, child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]; Gavel v R [2014] NSWCCA 56 at [110].
The maximum sentence and standard non-parole periods are important legislative guideposts for the Court to take into account: see Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. The legislature has set the heaviest maximum penalty of life imprisonment for s 66A(2) offences, accompanied by a standard non-parole period of 15 years. It follows that it is important that sentences for s 66A(2) offences reflect this grave element implicit in the offence itself: Gavel v R at [111].
Although there was only a short time between the two s 66A(2) offences, the nature of the offending on Count 2 is such that when the intervening Form 1 offence is taken into account, greater weight needs to be given to personal deterrence: Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [42] (Spigelman CJ; Wood CJ at CL, Grove, Sully and James JJ agreeing).

Whether a finding of special circumstances should be made on resentence

There remains the question as to whether special circumstances need or ought be found by this Court. In other words, in determining whether this Court should resentence the applicant it is required to determine whether such a finding should be made and if so the extent of any variation to the statutory ratio under s 44(2) of the Sentencing Act.
For those purposes, it is necessary for the Court to take into account both the evidence before the sentencing judge and the applicant's affidavit evidence in the present proceedings.
As to the evidence before the sentencing judge, the evidence as to the risk assessment undertaken by Ms Pratley and the results of the same, set out in her report of 30 July 2013, are of particular importance. As already mentioned, her assessment, subject to the cautionary matters referred to in [52] of the report, was that the applicant has a low risk of sexual recidivism: at [60]. Furthermore, she was of the opinion that his highest risk factors can be moderated through treatment though that is dependent upon his response to and engagement in such a process. The affidavit evidence of the applicant discloses that he has seen a psychologist since he entered custody and that this has assisted him in identifying programs that address his offending behaviour, as well as to improve his daily life: affidavit at [9].
The applicant's affidavit discloses that he has undertaken a number of courses whilst in custody and he has applied for, and since been referred to, the Preparatory Program for Sexual Offenders. That program, it is stated, would prepare him to participate in sexual offender treatment programs whilst in gaol. He is waiting on acceptance into that program. He has stated his intention to apply for the CUBIT program once he has completed the Preparatory Program.
The sentencing judge found that the applicant would require substantial assistance and supervision on his release. This finding was not challenged by the Crown.
The Crown also accepted on appeal that it would not be inappropriate for this Court to consider and give some weight to the prospects of rehabilitation in determining whether a finding of special circumstances should be made on resentencing (Tcpt, 10 at lines 29-36).
A finding of special circumstances should be made (justifying departure from the statutory ratio between the non-parole period and the balance of the term) to provide for the applicant's need for a longer period of supervision upon his release.
That need or desirability arises in the present case from two matters. First, the prospect of particular difficulties for the applicant in adjustment after a long period in custody, having regard to the anticipated social isolation from his family upon his release. Secondly, and related to the first matter, the greater prospect of rehabilitation if the applicant is supervised whilst on parole than for a longer period of incarceration.
It is well established that accumulation may require adjustment of a single sentence to re-establish the statutory proportion for the actual total sentence: R v Simpson at [36]. However, an accumulation of sentences does not automatically give rise to a finding that special circumstances exist: R v Cook [1999] NSWCCA 234 at [38]. Here the relatively small period of accumulation which is appropriate, as discussed below, does not require adjustment of the sentence on Count 2 to re-establish the statutory proportion for the actual total sentence.
In determining the parole period for the individual sentences on Counts 1 and 2, it is important to bear in mind that there will be a practical limit of 3 years upon parole supervision which the applicant may receive: cl 218 Crimes (Administration of Sentences) Regulation 2014 (NSW); AM v R [2012] NSWCCA 203; 225 A Crim R 481 at [90]; Collier v R [2012] NSWCCA 213 at [37]; Jinnette v R [2012] NSWCCA 217 at [107].
In the present case the evidence of the psychologist amply demonstrates that the applicant should be subject to supervision, with associated counselling and treatment, for the entirety of the period upon which he is to be on parole. It follows that "[a]s this period is confined by an upper limit of 3 years, then that is an important factor which indicates that no longer period ought to be set": Jinnette v R at [108].
In all the circumstances, I consider that a lesser sentence is warranted in law. After allowing for the 25% discount for the applicant's pleas of guilty (as applied by the sentencing judge), I consider that the following sentences are appropriate: 1. Count 1 - the first s 66A(2) offence - imprisonment for a period of 9 years with a non-parole of 6 years and 3 months; 2. Count 2 - the second s 66A(2) offence (taking into account the Form 1 offence) - imprisonment for a period of 9 years and 9 months with a non-parole period of 6 years and 9 months.
It was not in contest that some accumulation is appropriate in the circumstances of this case. I would adopt the approach of the sentencing judge of a 6 month accumulation on the sentence on Count 2 on the earlier sentence on Count 1.
The effective total sentence that I would propose is a term of imprisonment for 10 years and 3 months commencing on 11 June 2012, with a non-parole period of 7 years and 3 months expiring on 10 September 2019.
I propose the following orders: 1. Grant leave to appeal against sentence. 2. Appeal allowed. 3. The sentence imposed in the District Court on 12 September 2013 is quashed. 4. On Count 1 (the first s 66A(2) offence), the applicant is sentenced to imprisonment comprising a non-parole period of 6 years and 3 months, commencing on 11 June 2012 and expiring on 10 September 2018, with a balance of term of 2 years and 9 months expiring on 10 June 2021. 5. On Count 2 (the second s 66A(2) offence), the applicant is sentenced to imprisonment comprising a non-parole period of 6 years and 9 months, commencing on 11 December 2012 and expiring on 10 September 2019, with a balance of term of 3 years and expiring on 10 September 2022. The first date the applicant is eligible to be released on parole is on 11 September 2019.
After the reasons of the Court were published, the Court's attention was drawn to an error with respect to order 4 referred to in [74] above. The date "10 March 2021", originally stated as the date of expiry of the balance of term on Count 1, has been replaced by the date "10 June 2021" as now appears in 74.
JOHNSON J: I agree with Gleeson JA.
HALL J: I agree with the orders proposed by Gleeson JA and with his Honour's reasons.

Amendments 02 April 2015 - Amendment to order 4 in para 74 and and order 4 in Coversheet. New para 75. 02 April 2015 - Coversheet 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: 02 April 2015

Crimes Act 1900(NSW)ss 61M(2), 66A(2)

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