NRW v R

COUNSEL: A P Cook SC - Applicant L Wells - Respondent/Crown

SOLICITORS: S O'Connor - Legal Aid S Kavanagh - Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL CCA 2007/13366

McCLELLAN CJ at CL GROVE J HOWIE J

18 December 2008 NRW v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Grove J. 2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Conlon DCJ in Wollongong District Court. The applicant was arrested on 7 February 2007 and charged with offences which I will shortly detail. He has been in custody since that date. He pleaded guilty to charges in Wollongong Local Court on 18 July 2007, which his Honour found was the earliest opportunity so to do. The three victims were therefore spared the potential ordeal of giving evidence about what they had suffered. 3 The applicant was born on 26 July 1963 and is now aged 45. In about 1987 he formed a relationship with a woman (M) who already had a son (JC) born on 9 June 1981 and a daughter (MC) born 4 October 1983. The new relationship resulted in the birth of two further children, a daughter (CW) born on 1 November 1987 and a son (JW) born on 6 April 1989. 4 It is apparent that the household was other than a zone of contentment. His Honour found that the applicant drank alcohol to excess and was a heavy user of cannabis. He was physically abusive to M and physically and emotionally abusive to the children. He was for most of the time unemployed but M worked at two jobs, in a local chicken shop and as a cleaner. M's employments required her to work into the evenings and more often than not the children were in the care and custody of the applicant in those hours. 5 Upon arrest the applicant, in accordance with his entitlement, declined to be interviewed by police. He chose not to give evidence in the sentencing proceedings. An affidavit by him was filed but he did not refer to the circumstances of the offences. There was some history given to Dr Allnutt, a psychiatrist who saw the applicant on two occasions in October and November 2007. There was also before his Honour the Justice Health file and this contained a report by a Mr O'Driscoll, a clinical nurse consultant. Mr O'Driscoll had the police fact sheet but did not canvass the detail in his interview with the applicant which took place on 6 March 2007. Mr O'Driscoll was responding to a request from the Local Court for a report concerning the applicant's mental health. Save what might be gleaned from the opinions formed upon the limited source material, there was no explanation for the applicant's criminal conduct. 6 His Honour expressed a conclusion about the objective seriousness of the offences in these terms: "The objective seriousness of these offences is patently obvious. He has used his own daughter, his stepdaughter and stepson, as objects for his sexual gratification over a span of years dating from 1989 to 2001. He has also abused his position of trust in the worst possible way. His use of the complainants as sex objects, commenced when they were but mere children and continued on into their teenage years." 7 That undoubtedly accurate statement by its brevity cloaks somewhat the enormity of the applicant's persistent predatory attacks on the children. His Honour recounted detail in his remarks on sentence elsewhere and from them counsel for the applicant has constructed a summary which it is useful to reproduce: "The first three counts in the indictment are in respect of (CW). Count 1 is sexual intercourse child under ten years of age (s 66A). In 1995 the complainant was eight years old. She was at her home on an evening when her mother was at work. She was in the bath when the offender entered the bathroom. There was no lock on the bathroom door. He knelt down beside the bath and commenced to stroke the complainant's vagina. He was also kissing the breast area of the complainant. She was upset at what was happening and she felt pain to the vaginal area. She said to the offender, 'I don't like this, it hurts.' He removed his finger and left the bathroom. The next matter is the matter on Form 1, in respect of (CW), aggravated act of indecency (s 610(1)). In 1997 the complainant was ten years old. One evening she was in the bathroom of the family home having a shower. The offender has entered the bathroom and pulled open the shower curtain to reveal the complainant standing there naked. He said to the complainant, 'You're growing up, your boobs are getting bigger, you have a good body.' He then uncovered his penis and made the complainant touch his penis. At this time the offender was also touching his penis. The complainant was also touching his penis at this time and she remembers the offender ejaculating. Count 2, aggravated act of indecency (s 610(1)). In 2000 the complainant was thirteen to fourteen years old. At that time she was playing representative soccer for the Wollongong Wolves ladies team. The offender drove the complainant to a match in Sydney. After the match he was driving back towards Wollongong along the F6 freeway. He left the F6 and drove to the Mt Keira Lookout. He drove to a very secluded area where he stopped the vehicle. The complainant was terrified of what was going to happen to her in this secluded area. She remembers seeing condoms and toilet paper in the glove box of the car. The offender has exposed his erect penis in the car. He then made the complainant masturbate him with her hand while sitting in the car. The complainant recalls the offender has ejaculated on her hands. The complainant used the toilet paper to clean his semen from her hand. She claims to have felt scared and angry at this time. Count 3, aggravated sexual assault (s 61J(1)). In 2001 the complainant was fourteen to fifteen years old. After a training session at Albion Park with the Wollongong Wolves ladies soccer team, the offender drove the complainant to a secluded area. She remembers there were no streetlights, it was very dark and it looked like a construction area. He stopped the vehicle in what she believed was a dead-end road. The offender has then made the complainant remove her pants. He then touched her on the vaginal area before inserting his finger into her vagina. The complainant was very scared at this time and has attempted to get out of the car. The offender has leant across her and kept the door closed. He then placed the front passenger seat in the recline position and forced the complainant to lean back on the car seat. The offender has then leant down and began licking the complainant's vagina with his tongue. The complainant kept telling the offender to stop what he was doing but he continued to lick her vagina. He then lay on top of the complainant. She could feel that his penis was erect. He then placed his erect penis on her vagina. He attempted to penetrate her vagina. He did not fully insert his penis into her vagina but the end of his penis did penetrate her vagina. He then stopped what he was doing. At this time the complainant was very scared, crying and bewildered at what her natural father was doing to her. The next four counts are in respect of (MC). Count 4, sexual intercourse, child under ten years of age (s 66A). In 1989 the complainant was six years old. On one evening at the family home, the offender called the complainant to the bathroom. When she entered she saw the offender sitting on the toilet with his pants around his feet. He asked her to get him a roll of toilet paper, which she did. After handing the toilet roll to the offender she has attempted to leave the bathroom. The offender has leant forward and taken hold of the complaint's (sic) arm and stopped her from leaving the bathroom. He then said, 'Let me look at it and touch it, let me see it.' The offender has pulled down the complaint's (sic) pants and started to rub the complainant's vagina with his fingers. He then placed his finger inside the complaint's (sic) vagina. The complainant felt pain when he was penetrating her vagina with his fingers. Count 5, sexual intercourse child under ten years (s 66A). In 1989/1990, the complainant was six/seven years old. The complainant remembers one evening when she was at home with the offender. He was in the bathroom when she heard a knock on the wall and he asked her to get him some toilet paper. She got the toilet paper and walked into the toilet, where she saw the offender sitting on the toilet. She handed him the toilet paper and attempted to leave the toilet. Before she could leave the offender took hold of her arm and stopped her from leaving. He then pulled down her pants and started rubbing her vagina with his fingers. The offender has then inserted a finger inside her vagina. The complainant felt pain when the finger was inserted inside her. On this occasion the complainant noticed the offender had an erect penis. He then lifted the complainant on to his lap, placed his erect penis inside her vagina. The complainant described feeling excruciating pain when the offender placed his penis inside her vagina. The next matter is referrable to the Form 1 matter, aggravated sexual assault (s 61J(1)). In 1996 the complainant was thirteen years old. She was at the family home with the offender one day when he told her to clean out a bird shed at the rear of the premises. The complainant has gone to the shed and was cleaning it when the offender has entered the shed. He said to the complainant, 'Come here, tell me how much you love me.' The complainant complied with the offender's request because she felt scared. She told him, 'I love you so much.' With this the offender has taken hold of the complainant and pulled down her pants. He then bent her over at the waist and had sexual intercourse with her by inserting his penis into her vagina. Count 6, aggravated sexual assault (s 61J(1)). In 1998 the complainant was fourteen years old and about in August of that year, the offender has approached the complainant at the family home and forced her to have sexual intercourse with him. As a result of the penile/vaginal sexual intercourse, the complainant has fallen pregnant. The complainant gave birth to a son (N) on 1 June 1999 at Wollongong Hospital. The complainant has kept the child and he is not aware that the offender is his real father. Count 7, sexual intercourse without consent (s 61I). In 2000, the complainant was seventeen years old. At that time the offender was coaching a junior soccer team in which the complainant's younger siblings were members. The complainant travelled with her sister (CW) and the offender to an area in Sydney for a match. They had a tent with them at that time and it was arranged for the two sisters to sleep in the tent and the offender would sleep in the motor vehicle. The tent was pitched and just before bed, the offender called the complainant to the motor vehicle. She got in the car and the offender said, 'I'll make love to you tonight.' The complainant refused and told the offender that her sister was nearby. He told her that he would turn up the music on the radio and he also said, 'If you don't do it, I will go out to (CW).' The complainant has then let the offender have sexual intercourse with her, in order to stop him from hurting and sexually assaulting her sister, who was about fourteen at the time of this incident. The next matters are in respect of (JC). The first is the Form 1 matter, sexual assault, incite indecent assault under sixteen and under authority (s 61E). In 1989, the complainant was eight years old. One evening the offender has called the complainant into the bathroom. When he entered the bathroom he saw the offender was in the bath and was laying there masturbating himself. The offender asked the complainant to pass him a block of soap. The complainant passed him the soap which he lathered in the water and used to continue masturbating his erect penis. He said to the complainant, 'This is what boys do, to make themselves feel good.' He told the complainant to masturbate him. The complainant did what he was asked and rubbed the offender's erect penis. Count 8, attempt homosexual intercourse with male between ten and eighteen years (s 78L). In 1995, the complainant was fourteen years old. One evening the offender was watching a pornographic movie at the family home. The complainant made a cup of coffee for the offender and took it into the lounge room, where he was watching a pornographic video. The offender then directed the complainant to get on his hands and knees on the floor in front of him. The offender has got behind the complainant and attempted to insert his erect penis into the anus of the complaint (sic). The offender was unable to penetrate the complainant's anus, so he then rubbed the complainant's anus with his fingers. Count 9, homosexual intercourse with male between ten and eighteen years (s 78N). In 1996, the complainant was fifteen years old. One evening the complainant was asleep in his bed when he was awoken by the offender calling him to the lounge room. When the complainant entered the lounge room, he saw the offender laying naked on the lounge. He was masturbating his erect penis whilst watching a pornographic movie. He said to the complainant, 'Come and suck it'. As a result, the complainant then carried out oral sex on the offender. He then said to the complainant, 'Sit on it.' After saying this, the offender has removed the complainant's underpants and physically moved him to a position, where his backside was in front of his penis. He then held the complainant by the hips guided his erect penis into the complainant's anus. He then moved the complainant's head to his penis where he made him perform oral sex. The offender has the ejaculated into the mouth of the complainant, as well as on his face and neck. The offender handed the complainant a towel, which he used to clean himself before going back to bed." 8 It should be observed that the circumstances of the child N born as a result of the offence charged in count 6 has a potential for further causative damage beyond the presently perceived consequences of the conduct of the applicant when the child may become aware at some time in the future of the criminal act by the applicant which led to his being. 9 The maximum penalties prescribed for the offences against various provisions of the Crimes Act 1900 referenced in the above are as follows:

Section 66A - 20 years imprisonment Section 61O(1) - 5 years imprisonment Section 61J(1) - 20 years imprisonment Section 61I - 14 years imprisonment Section 78L - 5 years imprisonment Section 78N - 14 years imprisonment 10 His Honour imposed sentences in respect of the victim CW:

Count 1 (taking into account the Form 1 offence), imprisonment consisting of a non-parole period of 3 years commencing on 7 February 2007 and expiring on 6 February 2010 with a balance term of 2 years.

Count 2, a fixed term of 2 years imprisonment commencing on 7 February 2007 and expiring on 6 February 2009.

Count 3, imprisonment consisting of a non-parole period of 5 years commencing on 7 February 2009 and expiring on 6 February 2014 with a balance term of 3 years. 11 For the offences in respect of the victim MC:

Count 4, a fixed term of 4 years imprisonment commencing on 7 February 2014 and expiring on 6 February 2018.

Count 5, imprisonment consisting of a non-parole period of 5 years commencing on 7 February 2013 and expiring on 6 February 2018 with a balance term of 3 years.

Count 6 (taking into account the Form 1 offence), imprisonment consisting of a non-parole period of 6 years commencing on 7 February 2015 and expiring on 6 February 2021 with a balance term of 5 years.

Count 7, imprisonment consisting of a non-parole period of 5 years commencing on 7 February 2014 and expiring on 6 February 2019 with a balance term of 3 years. 12 For the offences in respect of the victim JC:

Count 8, a fixed term of 3 years imprisonment commencing on 7 February 2012 and expiring on 6 February 2015.

Count 9 (taking into account the Form 1 offence), imprisonment consisting of a non-parole period of 6 years commencing on 7 February 2011 and expiring on 6 February 2017 with a balance term of 3 years. 13 The overall practical effect of these impositions was to require a minimum term of custody for 14 years from the date of arrest with a balance term of 5 years. The structure was such that the sentences imposed for the offences in respect of which JC was the victim would be served wholly concurrently with the impositions for the offences upon the female victims, CW and MC. 14 The applicant has a significant record of prior offending and his Honour's finding that it disentitled him to leniency was clearly open. The most serious prior matters were dealt with at Central Criminal Court on 21 October 1983 following charges which had been preferred on 14 November 1982. On the lastmentioned date the applicant would have been 19 years of age and the reference in the police print-out (repeated in the Particulars of Trial) to Central Children's Court is an obvious error, apart from anything else, no Children's Court could have imposed penal servitude. 15 The applicant received concurrent sentences of 5 years penal servitude for malicious wounding with intent to do grievous bodily harm and robbery with striking and wounding and a further 4 years penal servitude cumulative on those sentences for maliciously inflicting actual bodily harm with intent to have sexual intercourse. On two counts of sexual intercourse without consent the applicant was sentenced to 2 years penal servitude to be served concurrently with those and for a third offence of sexual intercourse without consent to 2 years penal servitude cumulated on the previous impositions. This amounted to an overall head sentence of 11 years with a non-parole period of 4 years being specified. 16 In addition, the applicant has been convicted of numerous offences including possessing and supplying prohibited drugs, cultivating cannabis, assault, contravening an apprehended violence order and serious traffic violations. 17 When the application was called on for hearing senior counsel for the applicant notified the Court that ground 1 which had asserted that the learned sentencing judge erred in his approach to the evidence of the applicant's mental condition was no longer pressed. 18 The remaining ground 2 asserted that the learned sentencing judge failed to give full effect to his finding that there were special circumstances pertaining to the applicant's sentencing. 19 It should be stressed that no submission was advanced that any individual sentence, nor the enveloping resultant total, was excessive and argument was limited in its focus to the consequential fact that the overall non-parole period, expressed as a ratio, was equivalent to just under 74 percent of the total term. 20 The effect of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 is that, requiring a balance term not to exceed one-third of the non-parole period unless special circumstances are found and reasons given, in the absence of special circumstances a non-parole period would be equivalent to 75 percent of total term. 21 In his remarks on sentence his Honour said: "I find special circumstances. I have considered not only the fact of the accumulation of the sentences but having regard to the reports of Stephen Allnutt and Mr Colman O'Driscoll and the conclusions and recommendations therein, the offender will require an extended period of supervision to assist in his rehabilitation." 22 The argument of the applicant sought to deduce from the reference to special circumstances that his Honour had expressed an intention to set a non-parole period in relation to total term of less than 75 percent. It is contended that error can be identified because the "arithmetic" reveals the proportion to be just under 74 percent. 23 His Honour did not express an intention to achieve an overall non-parole period representing specifically less than 75 percent of total term. As above noted his stated intention was to create a potential term during which the applicant may have the opportunity to be released to parole and which would be long enough to allow for an extended period of supervision. A balance term of five years is obviously more than adequate for such a purpose. 24 To the extent that it was suggested that his Honour had an intention to set a non-parole period (significantly) less than 75 percent of total term, it can be observed that his final remarks were: "Consequently, the offender will be eligible for release to parole on 6 February 2021. That is a total effective sentence of fourteen years with an additional period of five years." 25 It is clear that his Honour was fully conscious of the ingredients of the total sentence and their relationship to each other. The period of five years amply fulfilled his expressed intention to establish a potential extended period during which supervision might take place. 26 The effect of the sentences was to impose a very lengthy time of minimum custody but the offences committed by the applicant were grave. The applicant could regard himself as fortunate not to have had any cumulative term for the offences committed upon JC. 27 I would grant leave to appeal against sentence but dismiss the appeal. 28 HOWIE J: I agree with Grove J.

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