MJL v REGINA

Court of Criminal Appeal (NSW)|2007-05-08|Before: Campbell JA, Hidden J, Smart AJ

The application 13 Counsel for the applicant, Mr Dhanji, argued the application on three grounds: (1) That his Honour erred in the manner in which he took into account uncharged sexual conduct of the applicant; (2) That his Honour erred in failing to find special circumstances pursuant to s44(2) of the Crimes (Sentencing Procedure) Act ; and (3) That the sentences, individually and in their combined effect, are manifestly excessive.

Uncharged sexual conduct 14 The first ground arises from the following passages in his Honour's remarks: … it is the fact that each of the offences to which the prisoner has pleaded and for which he is to be sentenced, are but examples of an ongoing pattern of debauchery to which he subjected his daughter over the period from 1974 to about 1983. Each sentence therefore is to be taken as referring not just to the act, but to the context in which the act occurred, namely, that it was part of this continuing pattern of misconduct.

Special circumstances 19 I have referred at the beginning of these reasons to the overall sentence his Honour passed for the applicant's offences against his daughter. It is convenient now to record the sentences for each of those offences. They were as follows: Counts 1 & 2: Concurrent fixed terms of imprisonment for eighteen months, dating from 11 November 2006; Counts 4 & 6: Concurrent fixed terms of imprisonment for eighteen months, dating from 11 May 2007; Counts 3 & 5: Concurrent terms of imprisonment for two years and eight months, dating from 11 May 2008, each comprising a non-parole period of two years and a balance of term of eight months; Counts 7 & 8: Concurrent fixed terms of imprisonment for eighteen months, dating from 11 May 2010; Count 9: Imprisonment for six years, dating from 11 May 2011, comprising a non-parole period of three years and a balance of term of three years. 20 It will be remembered that all of the counts except the ninth were charges of indecent assault. The third and fifth counts involved digital penetration. The ninth count, visited with the longest term of imprisonment, was the charge of carnal knowledge. On all counts except the third, fifth and ninth, his Honour passed fixed terms of imprisonment. 21 The sentences for each of the third and fifth counts, a non-parole period of two years with a balance of term of eight months, maintained the normal proportion between non-parole period and balance of term prescribed by s44(2) of the Crimes (Sentencing Procedure) Act. It was only in respect of the sentence on the ninth count, a non-parole period of three years with a balance of term of three years, that his Honour departed from that statutory proportion. He did so only because of the accumulation of the sentences. 22 The overall sentence of ten-and-a-half years with an effective non-parole period of seven-and-a-half years also departs from the statutory proportion, albeit only slightly. As I have said, the addition to that overall sentence of the sentences for the offences against the granddaughter produces a total sentence of twelve years with an effective non-parole period of nine years. That total sentence, of course, maintains the statutory proportion. This is consistent with his Honour's conclusion that, putting aside accumulation, there were no special circumstances requiring him "to interfere with the proportions set in the legislation." 23 For this ground of the application, Mr Dhanji relied upon authority bearing upon the fact that the applicant had stood for sentence in 2006 for offences committed between 1974 and 1982. It was settled in R v MJR (2002) 54 NSWLR 368 that a sentencing Court dealing with old offences such as these should, as best it can, replicate the sentencing practice of the period when the offences were committed. His Honour in the present case noted that "some care needs to be taken in not applying current standards of punishment to these offences." 24 The approach in MJR was developed further in AJB v R [2007] NSWCCA 51, a case involving sexual offences committed between 1979 and 1982, in which the Court had regard specifically to the practice at that time of setting non-parole periods: see the leading judgment of Howie J at [34] ff. Howie J noted that the specification of non-parole periods was then governed by the Parole of Prisoners Act 1966 which, unlike the current legislation, did not prescribe a prima facie proportion between non-parole period and head sentence. Such a statutory proportion was first introduced in the Sentencing Act 1989, which was repealed and replaced by the present Act. 25 During the period with which that case was concerned, Howie J observed, a non-parole period was usually somewhere between a third and a half of the length of the sentence. His Honour concluded that that practice might itself be sufficient to constitute special circumstances justifying departure from the statutory proportion between sentence and non-parole period under the present regime. Indeed, his Honour said at [37] that the Court in that case "should endeavour to apply the practice that existed in 1982 in specifying a non-parole period because that practice would favour the applicant." 26 The decision in AJB was handed down after the applicant was sentenced. The Crown prosecutor in this Court acknowledged the principle enunciated in that case, but sought to distinguish it on its facts. That applicant had made out a much more favourable subjective case than the present applicant. The Crown prosecutor submitted that in this case an effective non-parole period lower than that which his Honour imposed would be inadequate to reflect considerations of retribution and deterrence. Of course, as Howie J noted in AJB at [38], it has long been the law that a non-parole period should serve that function. 27 However, in my view, the approach taken in AJB is applicable here and justifies a finding of special circumstances, quite apart from other subjective features which might have done so. A relatively modest reduction of the non-parole periods for counts three, five and nine would produce minimum terms which are still effective to mark the applicant's criminality.

Manifestly excessive? 28 Mr Dhanji submitted that the sentences are, in any event, excessive. He acknowledged the undoubted gravity of the applicant's criminality, involving the abuse of his daughter over a lengthy period of time. However, he noted that only one of the nine offences involved penile/vaginal penetration, and argued that all of the offences fell well short of the worst of their kind. 29 He also noted that his Honour had discounted the sentences generally by one third in recognition of the applicant's pleas of guilty and his admissions of misconduct. That being so, the starting point for the sentences of two years and eight months on counts three and five must have been four years, against a statutory maximum of six years. Likewise, the starting point for the sentence of six years on count nine must have been nine years, against a statutory maximum of fourteen years. None of those offences, he argued, warranted a starting point of that order. Moreover, he said, those starting points failed to take account of the extent to which his Honour accumulated the sentences. 30 The Crown prosecutor submitted that the sentences were within the bounds of the proper exercise of his Honour's discretion. She relied upon the nature of the offences, the period over which they were committed, and the applicant's relationship to the victim. She noted the age of the victim at relevant times: R v AJP (2004) 150 A Crim R 575, per Simpson J at [35]. As I have said, she also argued that his Honour could not have specified non-parole periods lower than he did. 31 I think that there is force in Mr Dhanji's submissions. He did not direct any argument specifically to the fixed terms of eighteen months imprisonment for the counts other than the third, fifth and ninth, or to the manner in which his Honour accumulated the sentences. However, as I have said, the overall sentence for the offences relating to the daughter is ten-and-a-half years which, after the one third reduction, reflects a starting point close to sixteen years. I might add that the overall sentence for the offences against both the daughter and the granddaughter, twelve years, conveys a starting point of eighteen years. 32 The one third discount was generous and, putting those notional starting points to one side, it is necessary to examine the sentences which his Honour did pass to determine whether any lesser sentence is warranted in law: s6(3) of the Criminal Appeal Act. I am satisfied that a reduction of the sentence on the ninth count is called for, for the reasons identified by Mr Dhanji. I would be reluctant to alter the sentences on the third and fifth counts, the more serious charges of indecent assault. However, in arriving at the sentence of imprisonment for two years and eight months passed on each of those counts, it is clear that his Honour determined a non-parole period of two years and then added to it a balance of term maintaining the statutory proportion. As I would take a different approach to the non-parole period for those offences, I would reduce each of those sentences slightly. 33 As I have said, I would also vary the proportion of the non-parole period to each of those three sentences, while being careful not to reduce them to a point at which they fail to reflect the gravity of the applicant's criminality or which would produce an aggregate non-parole period which fails to do so.

Re-sentence 34 For the purpose of re-sentence we received an affidavit of the applicant, which attests to his continued status as a protected prisoner and to difficulties he faces in prison because of a problem with his health. It also expresses his willingness to undertake educational courses, as well as counselling which might help him to address the causes of his offending behaviour. 35 The task of re-sentence is not easy, any more than was the sentencing task which confronted his Honour. I would maintain the fixed terms of imprisonment for eighteen months for the counts of indecent assault other than the third and fifth. I would also maintain the commencement dates of the sentences for the first, second, fourth and sixth counts, and would accumulate the sentences in the same manner that his Honour did. For the third and fifth counts, I would substitute concurrent sentences of imprisonment for two-and-a-half years with a non-parole period of eight months. That non-parole period, of course, is the same as the fixed term of imprisonment on the other indecent assault counts, but the more serious nature of those two counts is reflected in the head sentence. For the ninth count, the offence of carnal knowledge, I would substitute a sentence of imprisonment for five years with a non-parole period of two years. 36 I would structure the sentences in such a way as to produce, for the offences in respect of the applicant's daughter, an aggregate term of nine years with an effective non-parole period of six years. The proportion of that non-parole period to the aggregate sentence is higher than one might have expected at the time the offences were committed, but I do not believe that a lower minimum term would be sufficient to reflect the gravity of the applicant's criminal conduct. Accumulating those sentences upon the sentences for the offences against the granddaughter, in the manner in which his Honour did, produces an overall aggregate term of ten-and-a-half years with an effective non-parole period of seven-and-a-half years. 37 Accordingly, I propose the following orders: (1) Leave to appeal is granted and the appeal is allowed.

(2) For counts 1, 2, 4 and 6, the sentences are confirmed. (3) The sentences for counts 3 and 5 are quashed. In lieu, the applicant is sentenced on each count to a non-parole period of eighteen months, commencing on 11 May 2008 and expiring on 10 November 2009, and a balance of term of twelve months, commencing on 11 November 2009 and expiring on 10 November 2010. (4) For counts 7 and 8, the sentences are confirmed but each is to commence on 11 November 2009 and to expire on 10 May 2011. (5) The sentence on count 9 is quashed. In lieu, the applicant is sentenced to a non-parole period of two years, commencing on 11 November 2010 and expiring on 10 November 2012, and a balance of term of three years, commencing on 11 November 2012 and expiring on 10 November 2015.

The applicant would thus be eligible for release on parole on 10 November 2012. 38 SMART AJ: Much of the background is set out in the judgment of Hidden J. 39 I agree with the reasons of Hidden J for rejecting the appeal ground based on the manner in which the judge took into account the uncharged sexual conduct of the applicant. I also agree with the conclusions he has reached as to the sentences he proposes be imposed on Counts 3, 5 and 9 and for the reasons he has given. I make the following additional comments. 40 The sentencing judge correctly regarded the offences the subject of Counts 3 and 5 as graver than the offences the subject of Counts 4 and 6. Count 4 involved the applicant requiring his daughter to touch his erect penis. The conduct the subject of Count 5 was part of the same course of conduct as the conduct the subject of Count 4. Count 5 involved digital penetration when the daughter was aged about 8 years. 41 Count 3 involved digital penetration of the daughter when she was aged about 6 years. Count 6 involved the applicant requiring his daughter to masturbate his erect penis when she was aged 11-13 years.

42 I agree with Hidden J that the sentencing practice which existed in the period 1974-1982 constitutes a special circumstance. See AJB v Regina [2007] NSWCCA 51at [38].

43 Sentencing for offences committed in 1974, 1976-1977 and 1982 was governed by the Parole of Prisoners Act 1966. In Power v The Queen (1974) 131 CLR 623 the High Court considered the Parole of Prisoners Ordinance 1971 (ACT) and certain decisions of this Court, the differences between that Ordinance and the Parole of Prisoners Act 1966 (NSW) being held to be immaterial for the purposes then under consideration. The joint judgment of four Justices held that in setting a non-parole period the sentencing judge should fix the minimum period of confinement that justice requires to be served, that is the minimum period of imprisonment that the crime committed calls for. The High Court overruled decisions of this Court on the New South Wales Act. 44 I do not need to refer to the Probation and Parole Act 1983 which replaced the 1966 Act nor the Sentencing Act 1989. 45 In Deakin v R (1984) 54 ALJR 765 at 766 the joint judgment of five Justices stated: The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence: see Power v R (1974) 131 CLR 623 at 629. 46 After the decision in Power, the judges of this State followed the High Court decision as to the principles to be applied in setting non-parole periods (or minimum terms). Generally, they set non-parole periods of half to one-third of the aggregate sentence as intimated in AJB but there were instances where longer non-parole periods were set. 47 Under the 1966 Act there was no stipulation as to the relationship between the non-parole period and the overall sentence. Section 4 of that Act provided that in respect of a person sentenced after that Act commenced and who was not at the time he was sentenced serving a term of imprisonment, the Court - (a) shall, where the sentence is for a term of imprisonment of more than 12 months; and

(b) may, in any other case specify a non-parole period before the expiration of which that person shall not be released on parole. 48 With sentencing under the 1966 Act, after Power, Courts, in practice tended to impose lengthy head sentences and, as mentioned, non-parole periods that varied from about one-third to one-half of the head sentence or, where there was more than one sentence of the aggregate sentences. Prior to Power the non-parole periods were probably shorter. See R v Portolesi [1973] 1 NSWLR 105 at 107 and R v Sloane [1973] 1 NSWLR 203 at 206. 49 The applicant was sentenced under the Crimes (Sentencing Procedure) Act 1999. Section 44(1) provides that the Court is first required to set a non-parole period for the sentence, that is the minimum period for which the offender must be kept in detention in relation to the offence. Section 44(2) provides that the balance of the term must not exceed one-third of the non-parole period for the sentence, unless the Court decides that there are special circumstances for it being more. The sentencing regime existing many years ago is a special circumstance. The statutory stipulation is an affirmation of the principle held to be applicable by the High Court in Power and Deakin. In practice, concepts as to what is the minimum period required to be served have risen since those decisions. 50 In R v MJR (2002) 54 NSWLR 368 a Court of five judges by a majority of four to one, held that a sentencing Court should take into account the sentencing practice as at the date of the commission of an offence when sentencing practice has moved adversely to an offender. The observations of Mason CJ and McHugh J in Radenkovic v The Queen (1990) 170 CLR 623 provided powerful support, but not binding authority, for such an approach, those Justices saying, inter alia, at 623: … when a court of criminal appeal is called upon to re-sentence because it has quashed the sentence initially imposed, considerations of justice and equity ordinarily require that the convicted person be re-sentenced according to the law as it stood at the time when he was initially sentenced, particularly when that law was more favourable to him than the law as it existed at the hearing of the appeal … 51 In the seminal case of R v Shore (1992) 66 A Crim R 37 at 42 Badgery Parker J with whom Mahoney JA and Hunt CJ at CL concurred expressly approved the trial judge's approach: … I should, so far as I am able to do so, seek to impose upon the offender a sentence appropriate not only to then applicable statutory maxima but also to then appropriate sentencing patterns. That is by no means easy but I must endeavour to do so. 52 That was described as "completely correct" and neither party (both being represented by experienced counsel) submitted otherwise. Shore was applied in R v Watson [1999] NSWCCA 227 at [26] by a two judge bench and in R v Moon (2000) 117 A Crim R 497 by Whealy J. He pointed out that the Court in Shore had extensive material before it as to the sentencing practices which existed at the time of the offences. 53 I do not subscribe to the view that there has to be a mechanistic approach to t he earlier practice. It is sufficient if substantial regard is had to it when sentencing practice has moved adversely to an offender. 54 I do not favour an approach that goes back to 1974-1982 and endeavours to predict what the Court would have concluded would happen as to rehabilitation and/or non commission of other similar offences when there is material available as to those matters of what has happened. Fact rather than prediction and speculation is preferred. 55 I agree with the orders proposed by Hidden J.

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Parole of Prisoners Act 1966(NSW)

Parole of Prisoners Ordinance 1971(ACT)

R v Ellis (1986) 6 NSWLR 603 R v JCW (2000) 112 A Crim R 466 R v MJR (2002) 54 NSWLR 368 AJB v R [2007] NSWCCA 51 R v AJP (2004) 150 A Crim R 575 Power v The Queen (1973) 131 CLR 623 CASES CITED: Deakin v R (1984) 54 ALJR 765 R v Portolesi [1973] 1 NSWLR 105 R v Sloane [1973] 1 NSWLR 203 Radenkovic v The Queen (1990) 170 CLR 623 R v Shore (1992) 66 A Crim R 37 R v Watson [1999] NSWCCA 227 R v Moon (2000) 117 A Crim R 497

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