NLR v R

Further parts of the remarks on sentence 11In her remarks on sentence the sentencing judge, immediately after stating the facts of the offences, said that on 14 October 2009 the applicant had attended a police station and had told a police officer that he had sexually molested a young girl, his wife's granddaughter, who at the time had been seven years old. The applicant was arrested. He then participated in an electronically recorded interview in which he made full admissions of the offences against both complainants. 12In her remarks on sentence the sentencing judge noted some of the subjective features of the applicant. At the time of being sentenced the applicant was 70 years old. He was retired, having been in regular employment during his working life. He had married the grandmother of the complainants, his second wife, in 2002. He had been divorced from his first wife by whom he had had three children, when he was 61 years old. All of the applicant's first wife, his children by his first wife and his second wife had been supportive of the applicant after his arrest. The applicant had been interviewed by a psychologist, who had found nothing to suggest any personality disorder. 13The sentencing judge found that the applicant had pleaded guilty at the earliest opportunity and should be allowed a 25 per cent discount for his pleas of guilty. Her Honour found that the applicant was truly remorseful and was developing some insight into the impact of his offending behaviour on others. Her Honour said that she could not be satisfied beyond reasonable doubt that the applicant had committed the offences for his own sexual gratification. Her Honour found that the applicant's prospects of rehabilitation were good and that the likelihood of his re-offending was low. Her Honour made some other remarks about some of the applicant's subjective features to which I will refer when considering the applicant's grounds of appeal against sentence. 14In her remarks on sentence the sentencing judge said that the offences were objectively very serious and noted that the applicant was not being sentenced for one isolated incident. Her Honour found that the offences involved a complete violation of trust by an adult to whom children were entitled to look for protection. Her Honour noted that general deterrence is of great importance in the sentencing of offenders who commit sexual offences against young children, particularly where the offender is in a position of trust. 15In her remarks on sentence the sentencing judge referred to the standard non-parole periods set for the offences. She noted that, because the applicant had pleaded guilty, the standard non-parole periods were not directly applicable but remained as a reference or checkpoint. Her Honour found that all the offences fell below the middle of the range for offences of their type. In making this finding her Honour noted that the offences had been committed spontaneously without any planning, were not prolonged, and, apart from the admonition to "M" not to tell anyone, had not been accompanied by any threats. 16Her Honour found special circumstances in favour of the applicant, in his age, his vulnerability within the Correctional system and in the partial accumulation of the sentences her Honour was about to impose.

Grounds of appeal against sentence 17The applicant relied on the following grounds of appeal against sentence:- GROUND 1 That the sentencing judge erred by taking into account as an aggravating factor that the "offences took place in the home of the offender ..." GROUND 2 The sentencing judge erred in her application of s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Act") and thereby did not consider the applicant's prior good character and absence of a record of previous convictions as mitigating factors. GROUND 3 The sentencing judge erred by failing to take adequately into account the applicant's assistance to law enforcement authorities within the meaning of s 21A(3)(m) & s 23 of the Act. GROUND 4 That in all the circumstances the penalty imposed upon the applicant was manifestly excessive. 18The application for leave to appeal against sentence was brought out of time but at the hearing counsel for the Crown informed the Court that the Crown had no objection to an extension of time being granted and I consider that an extension of time should be granted. I will consider the grounds of appeal in turn. GROUND 1 The sentencing judge erred in taking into account as an aggravating factor that the "offences took place in the home of the offender" 19This ground of appeal was based on a part of a paragraph in her Honour's remarks on sentence. The full paragraph was:- "These offences are objectively very serious indeed. The sexual assault of a step-grandchild by her step-grandfather and the indecent assault of a second step-grandchild by her step-grandfather. A complete violation of trust by an adult to whom the children were entitled to look for protection. The offences took place in the home of the offender, a place the children regularly stayed and a place where they ought to have been safe from violation at the hands of their step-grandfather." 20The part of the paragraph relied on by counsel for the applicant was the part reading "The offences took place in the home of the offender." It was submitted that in this part of the remarks on sentence her Honour had taken into account as an aggravating factor that the offences had been committed in the home of the applicant and that her Honour had not been entitled to regard this matter as an aggravating factor. 21Section 21A(2)(eb) of the Crimes (Sentencing Procedure) Act provides that an aggravating factor to be taken into account in determining the appropriate sentence for an offence is that "the offence was committed in the home of the victim or any other person". 22However, as was submitted by counsel for the applicant, it has been held that s 21A(2)(eb) is not applicable, where the offender was lawfully in the home where the offence was committed and was not an unauthorised intruder; Ingham v R [2011] NSWCCA 88 at [112] per McClellan CJ at CL, the other members of the Court agreeing. See also Oh Hyunwook v R [2010] NSWCCA 148 at [35]-[40]. In the present case, the applicant was clearly lawfully in his own home when the offences were committed. 23However, I do not consider that, on a fair reading of the whole paragraph of her Honour's remarks, her Honour was treating the fact that the offences took place in the applicant's home as in itself an aggravating factor. In my opinion, in this paragraph of her remarks her Honour was making a general finding that there had been a complete violation of trust by the applicant and the fact that the offences took place in the children's grandparent's home where they regularly stayed and should have been safe was relied on, not as an independent aggravating factor, but as supporting the sentencing judge's finding that there had been a complete violation of trust. 24I would reject the first ground of appeal. GROUND 2 The sentencing judge erred in her application of s 21A (5A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and thereby did not consider the applicant's prior good character and absence of a record of previous convictions as mitigating factors . 25Section 21A(5A) of the Crimes (Sentencing Procedure) Act, which is referred to in this ground of appeal, is to be read with s 21A(3)(e) and (f) of the Act. Section 21A(3) provides that the mitigating factors to be taken into account in determining the appropriate sentence for an offence include (e) "the offender does not have any record (or any significant record) of previous convictions" and (f) "the offender was a person of good character". 26Section 21A(5A) of the Act provides:- "In determining the appropriate sentence for a child sexual offence the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the Court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence". All of the present offences were child sexual offences within s 21A(5A). 27There was no reference in the sentencing judge's remarks on sentence to any previous criminal history of the applicant and it was not a matter raised in the proceedings on sentence. In fact, the applicant was not completely free of previous criminal convictions, although it could be said that he did not have any significant record of previous criminal convictions. 28The sentencing judge did refer to the applicant's character in her remarks on sentence. Her Honour said:- "The offender is said to be a person of otherwise good character. That does not entitle him to any degree of leniency. All too often these types of offences are committed by those who are of otherwise good character. It is that good character which enables them to go about this evil practice without fear of detection, confident that if a child does come forward and complain the child will not be believed. The helplessness of children in a family situation such as this is self-evident." 29The evidence of the applicant's character which had been placed before the sentencing judge was limited to evidence that the applicant had reached the age of 70 with only a very minor criminal record, had before he retired been in regular employment, had married twice and had raised children. 30It was submitted by counsel for the applicant on the hearing of this application that what the sentencing judge said in the part of the remarks on sentence which I have quoted did not amount to a finding within s 21A(5A) of the Act. It was submitted that, in order for a sentencing judge to make a finding within s 21A(5A), the sentencing judge is required to make an express statement of the judge's satisfaction that the factor(s) concerned had been of assistance to the particular offender in the commission of the offences for which the offender is being sentenced. Remarks of a general kind applying to offenders generally, such as were made by the sentencing judge, do not amount to findings within s 21A(5A). Consequently, the sentencing judge was required to take into account the applicant's lack of a significant record of previous convictions and his good character and the sentencing judge's statement that the applicant's good character did not entitle him to any degree of leniency was erroneous. 31I would accept that, in order for s 21A(5A) to apply, with the consequence that an offender's good character or lack of previous convictions is not to be taken into account as a mitigating factor, the sentencing judge should make an express statement of the judge's satisfaction that the factor concerned had been of assistance to the offender in the commission of the offence. 32However, in the present case, I consider that any error on the part of the sentencing judge was merely procedural. I am satisfied from a reading of the whole of her Honour's remarks on sentence that, if her Honour had adverted to the need to make an express finding specific to the applicant, her Honour would have made, and would have been entitled to make, such a finding in relation to both sentencing factors. Her Honour would hardly have made the general remarks I have quoted, unless she considered that they were applicable to the applicant. Elsewhere in her remarks on sentence her Honour noted that, after the applicant's offences were discovered, the applicant had been denied access to the complainants and to his own grandchildren. 33In my opinion, any error on the part of the sentencing judge was merely a procedural error and had no effect on the sentences imposed. GROUND 3 The sentencing judge erred by failing to take adequately into account the applicant ' s assistance to law enforcement authorities within the meaning of s 21A(3)(m) & s 23 of the Act. 34Section 21A(3)(m) of the Crimes (Sentencing Procedure) Act provides that a mitigating factor to be taken into account in determining the appropriate sentence for a offender is "assistance by the offender to law enforcement authorities (as provided by s 23)". 35Section 23(1) of the Act provides:- "(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence." 36It was submitted on behalf of the applicant that the applicant had assisted law enforcement authorities by attending at a police station on 14 October 2009 and participating in an electronically recorded interview in which he made full admissions of the offences against both complainants. Such conduct on the part of the applicant, it was contended, amounted to assistance in the investigation of, or in proceedings relating to, the applicant's offences. Accordingly, the applicant should have received a further discount or allowance for this assistance, in addition to the discount of 25 per cent he received for his early pleas of guilty. 37No submission had been made before the sentencing judge that the applicant should receive a discount or allowance for assistance provided by him (as distinct from a discount for his early pleas of guilty). 38No submission was made in the proceedings on sentence or before this Court that the applicant was entitled to an allowance in sentencing under the principles in R v Ellis (1986) 6 NSWLR 603. It could not be said that the applicant had voluntarily disclosed hitherto unknown guilt of the offences against the complainants. The applicant gave evidence in the proceedings on sentence that on 13 October 2009 police had come to the cabin where the applicant, his wife and the complainant "I" were temporarily staying and had taken away the complainant "I", "because they said she was under child protection". The applicant gave further evidence that he had been told by his wife on 13 October 2009 that she had been told by her daughter, the complainants' mother, that allegations had been made of misconduct by the applicant towards his two step-grandchildren. The sentencing judge observed in her remarks on sentence that the applicant had gone to the police station, only after he had become aware of the "notification" of his offences. 39It was submitted by the Crown, in opposing the submission that the applicant should receive a further discount or allowance for assistance, that the applicant had received a full discount for his early pleas of guilty and a further unquantified allowance for remorse and that no further discount or allowance should have been made for any assistance provided by the applicant. 40I would accept that conduct of the kind relied on as amounting to assistance would be capable of coming within s 23(1) of the Act as being assistance in the investigation of the offences or in proceedings relating to the offences. However, I consider that, when an offender such as the applicant receives a maximum discount of 25 per cent for early pleas of guilty there is little room for a further discount or allowance of any significance for assistance, when the assistance is limited to participating in an interview by police and making admissions about the offender's own offences in respect of which he subsequently receives a maximum discount for early pleas of guilty. It has been held by this Court that, unless there is evidence that an offender will serve his sentence in more onerous conditions as a result of giving assistance, a combined discount for pleas of guilty and assistance should not normally exceed 40 per cent, even where the offender has given very substantial assistance about other offences and offences of other offenders, including undertaking to give, and giving, evidence at the trials of other offenders; R v Sukkar [2006] NSWCCA 92; Brown v R [2010] NSWCCA 73. 41As I have already indicated, the sentencing judge expressly referred in her remarks to the applicant going to a police station, participating in an interview and making admissions and I consider that it can be inferred that her Honour did take these matters into account in the sentencing of the applicant. 42I would reject this ground of appeal. GROUND 4 That in all the circumstances the penalty imposed upon the applicant was manifestly excessive 43In support of this ground of appeal counsel for the applicant submitted that the offences committed by the applicant were opportunistic and brief and had not been accompanied by violence or threats, that the sentencing judge had declined (perhaps surprisingly) to make a finding that the motive for the offences were sexual gratification and that the sentencing judge had found that the offences were below the middle of the range for offences of this type. Counsel also relied on such subjective features as the applicant's age, his pleas of guilty and the sentencing judge's findings that the applicant's prospects of rehabilitation were good and that the applicant was not likely to re-offend. 44Counsel for the Crown submitted that all of the matters relied on by counsel for the applicant had been taken into account by the sentencing judge in her remarks on sentence, that an important fact in the sentencing of the applicant was the abuse of trust by the applicant and that the sentencing judge was not sentencing for a single, isolated offence. The Crown pointed to the high maximum penalties for the offences and to the high standard non-parole periods, which, although not directly applicable, remained as a check or reference point. 45In my opinion, it cannot be said that any of the sentences exceeded the upper limit of the range of sentences within a proper exercise of her Honour's sentencing discretion. I would reject this ground of appeal.

Conclusion 46In my opinion, an extension of time in which to apply for leave to appeal should be granted, leave to appeal against sentence should be granted but the appeal against sentence should be dismissed. 47JOHNSON J: I agree with James J.

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