PH v R

LEGISLATION CITED: Crimes Act (now repealed) - ss 67, 73, 76 Parole of Prisoner Act 1966

R v Holyoak (1995) 82 A Crim R 502 CPW v R [2009] NSWCCA 105 CASES CITED : AJB v R [2007] NSWCCA 51; s169 A Crim R 32 MJL v R [2007] NSWCCA 261 Bradbury v R [2008] NSWCCA 93 Pearce v R [1998] HCA 57; 194 CLR 610

COUNSEL: J Girdham - Crown A Francis - Applicant

SOLICITORS: S Kavanagh - Crown C. Hunter - Applicant

IN THE COURT OF CRIMINAL APPEAL 2007/2990

GROVE J HOWIE J R A HULME J

FRIDAY 26 JUNE 2009 PH v R Judgment 1 GROVE J: I agree with Howie J. 2 HOWIE J: The applicant pleaded guilty in the Local Court to a number of child sexual assault offences committed against two of his daughters between 1966 and 1974. He was committed for sentence to the District Court on 1 December 2004 but refused to adhere to his pleas and the matter was remitted to the Local Court. On 5 October 2005 the applicant was committed to the District Court for trial on 25 charges. After negotiations between the Crown and those acting for the applicant, on 16 December 2005 he pleaded guilty to 17 counts on an indictment. However, before the applicant could be sentenced on those matters, he made an application that the Court allow him to withdraw his pleas of guilty. Judge Goldring refused that application on 25 August 2006. The applicant then came before Conlon DCJ (the Judge) for sentencing on 20 April 2007. 3 On 18 May 2007 the Judge sentenced the applicant to an overall sentence of 20 years with an overall minimum period to be served of 12 years. The sentences commenced on 18 August 2006 and the applicant is eligible to be released to parole on 17 August 2018. On that date the applicant will be just shy of his 85th birthday. The total sentence expires on 17 August 2026. On that date the applicant will be just shy of his 93rd birthday. 4 The applicant faced sentencing for eight counts of indecent assault contrary to s 76 of the Crimes Act (now repealed); three counts of carnal knowledge with a child under 10 years contrary to s 67 of that Act (now repealed); and six counts of carnal knowledge by a father contrary to s 73 of that Act (now repealed). Each of the indecent assault offences carried a maximum penalty of imprisonment for 5 years, each of the carnal knowledge offences carried a maximum penalty of life imprisonment and each of the offences of carnal knowledge by a father, a maximum penalty of 14 years. 5 For each of the counts of indecent assault the Judge sentenced the applicant to a fixed term of 3 years to date from 18 August 2006. For each of the offences of carnal knowledge the applicant was sentenced to a fixed term of 7 years to date from 18 August 2008. For each of the offences of carnal knowledge by a father the applicant was sentenced to a term of imprisonment made up of a non-parole period of 8 years to date from 18 August 2010 and an "additional term" of 8 years. This meant that for each of the offences of carnal knowledge by a father a total sentence of 16 years was imposed. As has been noted, the maximum penalty for that offence is imprisonment for 14 years and thus the sentence imposed for each of those offences exceeds the maximum penalty. 6 Shortly before the hearing of the application, the Court received a report from the Judge dated 15 April 2009. The Judge acknowledged that an error had occurred in the sentences pronounced by him, and as set out on the indictment, for each of the offences of carnal knowledge by a father. Having perused his handwritten notes, the Judge was able to ascertain that, for each of those offences, he intended to impose a sentence made up of a non-parole period of 8 years and an "additional term" of 5 years. Apparently a typographical error occurred when the Judge's associate typed a draft of his sentencing remarks from the Judge's hand-written notes. The additional term was written as a "5" in the notes but was transposed into an "8" in the typed draft. The Judge did not discover this error prior to passing sentence on the applicant. 7 Instead of the overall term of imprisonment of 20 years that was imposed upon the applicant, the Judge intended that the overall term would be 17 years against which the applicant would be required to serve a minimum period of custody of 12 years. Therefore, if the sentences for the offences of carnal knowledge by a father were altered to reflect the Judge's intention, the total sentence would expire just short of the applicant's 90th birthday. 8 All the offences, except one indecent assault, were committed against his daughter CH who was aged between 8 and 15 years at the time of the offending. The remaining indecent assault was committed against his daughter VH in 1974 when she was aged 11 or 12. 9 It is unnecessary to detail the truly appalling acts of sexual depravity that the applicant committed against CH. The Judge described them as "objectively horrendous". They were committed regardless of the physical pain he caused her at the time of the offending or the psychological damage he might have inflicted upon her for the rest of her life. The offender subjected his daughter to the whole gamut of indecent and sexual acts, including penetrating her with objects, in order to satiate his sexual desires. As a result the hapless child become pregnant to him at the age of 13. The pregnancy was terminated in December 1972 just before she turned 14. But not even that event spared the child. There were three further charges of carnal knowledge thereafter, but the applicant took the precaution of withdrawing before he ejaculated. Eventually the child escaped by leaving home. The last charge related to the applicant indecently touching another of his daughters. 10 It should be noted that many of the offences of indecent assault would now be classed as acts of intercourse. They were of the most serious kind and objectively in the worst category. In fact it is difficult to see how a court sentencing the applicant at a time shortly after the offences were committed could have avoided the maximum penalties for some offences. The applicant should have spent a very large part of his adult life in custody as punishment for this course of criminal conduct and to denounce and deter this type of behaviour towards a young child by her father. 11 But as so often is the case with this type of offending, the applicant avoided punishment for very many years because his victim was unable to complain about the conduct, so traumatised was she by it. It is an unfortunate fact in offences of this kind, that the more serious they are the less likely is it that the offender will be brought before the court at a time when an appropriate punishment can be imposed upon him. 12 The offender reported to a police station in February 2002 saying that his daughter had telephoned him telling him to "hand himself in". While police were trying to ascertain what the matter was about, the applicant's wife arrived with a daughter, who was neither of the complainants. The wife understood that VH had complained to police about the applicant's conduct. Nothing further occurred at that time to bring the applicant to justice. In July 2004 the police spoke again to the applicant as by that time both complainants had made statements to police. The applicant declined to be interviewed on legal advice and was charged with a large number of child sexual assault offences. 13 As has been noted, the delay from 2004, when the applicant was charged, until the applicant was sentenced in 2007 was largely due to his apparent attempts to manipulate the system by pleading guilty and then not adhering to the pleas in the District Court, thereafter being committed for trial, then pleading guilty and finally attempting to withdraw those pleas. 14 Notwithstanding this conduct the applicant was given the benefit of a discount of 20 per cent for the utilitarian value of his pleas. This was erroneously based upon a matter, which the Judge saw as most important, being that the "the offender's pleas have spared the victims the ordeal of having to testify". That is not a matter to be taken into account in determining the utilitarian value of the plea: see R v Borkowski [2009] NSWCCA 102. 15 As should be apparent, the sentencing proceedings occurred about 40 years after the offending commenced and about 33 years after it concluded. The applicant was born in 1933 and was aged 73 at the date of sentence. He had no criminal record. He was born in Malta and came to Australia at about the age of 20. He was married at the age of 23 and had nine children. The marriage ended in 1992 when this offending was disclosed within the family. He worked until 1983 as a labourer or crane driver. He ceased work because of health issues including a diagnosis of Hodgkin's disease. That disease is now in remission. 16 In a report tendered before the sentencing judge, a psychologist stated:

I note a complex developmental history characterised by educational impoverishment, illiteracy, a poor capacity to cope with his environment, and attendant to these considerations, ongoing depression and anxiety for many years. As a complicating feature this man suffers from an intellectual disability. Arising from this I suspect that he has only managed to function at a basic level in the community as a consequence of the prior supportive structure that he enjoyed with his family. This is of considerable relevance in relation to how he [is] managed both within a custodial setting and indeed upon his eventual release from prison.

This man is having a very difficult time in prison. This is on the basis of his age, his illiteracy and his considerable isolation from younger prisoners and his estrangement from his family. His confinement no doubt is compounding his emotional problems at a level of significance. . I note that he has been seen by the Forensic Psychology Unit, but I am unclear as to whether or not ongoing treatment is currently happening. It is clear that this man requires considerable professional support. He remains very much a risk in a custodial environment by virtue of his age and indeed the nature of his convictions. In the setting of him requiring ongoing protection for the duration of the sentence I anticipate his mental state will continue to deteriorate. 17 A clinical psychologist subjected the applicant to a number of tests and concluded:

[The applicant's] performance reflected severe impairment of intellectual functioning. His overall level of intellectual functioning was extremely low (previously referred to as mentally retarded) functioning at the first percentile. 18 In light of this evidence the Judge said:

It is the responsibility of the court to moderate considerations of deterrence according to the circumstances of the particular case, and I have done so in this matter. 19 There was medical evidence before the sentencing judge. This indicated that:

[The applicant] suffers ischaemic heart disease, hypertension and peripheral arterial disease (but continues to smoke). He also has problems with osteoarthritis.

However, the treating doctor stated the following opinion:

I do not see that these conditions preclude him from incarceration if that is the court's decision. However, he has attended here at approximately three monthly intervals and I feel he should undergo regular medical assessments if he is indeed incarcerated. 20 The Judge concluded that the applicant's age and health would have the effect of "making gaol more onerous for him". He also accepted that the applicant would have to serve his sentence on protection owing to the nature of his offending and that he might even be at risk in protection because he would not have the physical capacity to protect himself. In relation to the applicant's age the Judge stated:

Also on the question of age, I am of course aware of the possibility of the offender dying during the course of his minimum term. However, there is no automatic reduction because of advanced age, and it is also a matter to be considered together with the other circumstances of the case. 21 The Judge found special circumstances in order to reduce the non-parole period from the statutory relationship on the basis of the applicant's age and the fact that he would be serving his first time in custody. In that regard it should be noted that, in the sentence as imposed, the overall non-parole period was 60 per cent of the overall term of imprisonment. However, in the sentence that the Judge intended to impose, according to his report to this Court, the overall non-parole period is about 70 per cent of the overall term of imprisonment. 22 The grounds of appeal filed are as follows:

1. The sentence is manifestly excessive when regard is had to sentencing practice at the time of the offences:

2. His honour erred in imposing sentences in excess of the maximum penalty.

3. His Honour erred in the application of the principles enunciated in Pearce v The Queen [1998] HCA 57; (1998) CLR 610. 23 Ground 2 can be easily dealt with. Accepting that there was a typographical error that resulted in a sentence being imposed that not only exceeded the total maximum penalty but also was not the sentence that the Judge intended, this ground could be upheld and the sentence intended to be imposed could be substituted for each of the offences of carnal knowledge by a father. However, the applicant indicated during oral argument that such a substitution would not result in the other grounds being abandoned. The applicant asserts that under ground one the substituted sentence would still be manifestly excessive having regard to sentencing practice at the time of the offences. 24 Obviously one of the most significant matters in determining the appropriate sentence for the applicant was his advanced age at the time of sentencing. Old age does not necessarily result in substantial leniency being granted to an offender who has committed serious offences, particularly where the offences were committed relatively recent to the time of sentencing. More consideration can be given to the advanced age of an offender where there has been a delay in the sentencing, especially where that delay has resulted in a deterioration of the offender's physical or mental health. The court takes into account the offender's age in assessing whether imprisonment would bear more heavily upon the offender because his age may mean that he will have little prospect of ever walking from the gaol free or having any worthwhile life left after the sentence is served: R v Holyoak (1995) 82 A Crim R 502 at 507. 25 As can be noted in the passages extracted from the Judge's sentencing remarks above, his Honour was aware of the significance of the applicant's age and the general approach to be taken in sentencing such a person as the applicant for offences of considerable seriousness after an extensive delay. He specifically noted that imprisonment would be more onerous for the applicant and that there was a prospect that the applicant might die in prison. 26 The difficulties for sentencing courts caused by extensive delay between the offending conduct and sentence, usually in child sexual assault cases, has been the subject of a number of decisions of this Court. The latest is CPW v R [2009] NSWCCA 105. That was a somewhat complicated case because there were a number of offences committed between 1982 and 1986 and another group of offences committed between 2002 and 2006. However in respect of the earlier offences, which the Court referred to as "the old offences", the Court applied those authorities that were concerned with sentencing for offences that had occurred many years before the sentence was to be imposed. 27 It is unnecessary to refer to these authorities in any detail. The principle generally and simply stated is that the sentencing court attempts from information available to it to fashion the type of sentence that might have been imposed at a time proximate to the date of offending. Certainly the court ensures, so far as it is able to do so, that the offender is not disadvantaged by any change in the way specific types of offences have been considered by sentencing courts over the years that followed the offending or by changes to the legislation governing sentencing. 28 This manner in proceeding to sentence for "old offences" applies both to the head sentence and the non-parole period. In regard to this latter part of the sentence to be imposed, the Court in CPW quoted and applied the decision in AJB v R [2007] NSWCCA 51; 169 A Crim R 32. 29 AJB involved a sentence imposed in 2006 for an offence committed in 1982. The Court concluded that in 1982 a non-parole period was fixed at somewhere between a third and a half of the term of the sentence. I wrote the principal judgment with which the other members of the Court agreed and stated:

[37] It seems to me that this Court should endeavour to apply the practice that existed in 1982 in specifying a non-parole period because that practice would favour the applicant. It can do so on the basis that special circumstances under s 44 are to be found in the fact that there was a different sentencing practice in relation to fixing a non-parole period in 1982 which did not require a finding of special circumstances in order to avoid a statutory relationship between the non-parole period and the balance of the term. In Tatana v R [2006] NSWCCA 398 it was held that special circumstances could be found in order to overcome unfair disparity between co-offenders that would arise from "a too literal application of conventional sentencing principles and the requirements of s 44". It is consistent with that approach to find special circumstances in the present case in order to avoid unfairness that would arise by reason of the delay in the prosecution of the current charges as a result of a change in the law in relation to the determination of the appropriate non-parole period. 30 AJB was applied in MJL v R [2007] NSWCCA 261 in respect of offences committed between 1974 and 1982. It was also applied in Bradbury v R [2008] NSWCCA 93 in respect of offences committed between 1970 and 1975. There is no reason why it should not also apply to the offences in the present case. I note that in Bradbury the appeal was allowed where the non-parole period after a finding of special circumstances was 70 per cent of the total sentence. That is the situation here on the revised sentences based upon the Judge's report. 31 The legislation that was operative in the period when the offences were committed was the Parole of Prisoner Act 1966. As was pointed out in AJB, there was no provision in that Act that required there to be any relationship between the non-parole period and the total term of the sentence. But even under the current scheme, a finding of special circumstances in relation to a man of the age of the applicant with some health issues and intellectual deficiencies would not normally result in a non-parole period in the order of 70 per cent of the total sentence. 32 In AJB I indicated that, at least in relation to that applicant, general deterrence was of less significance than it might otherwise be because of the period between the offending and the imposition of sentence and because of his reform over that period. I believe that this will generally be the case where, as in both AJB and the present case, a considerable period of time has passed between the offending and sentencing and where over that period there have been no further offences. This is not to imply that general deterrence is of no significance in such cases. Potential offenders should understand that the courts will treat these types of offences harshly notwithstanding that extensive delay occurs before the offender is punished. But, as was recognised in Holyoak, the need for general deterrence must be considered in light of the effect of the sentence of imprisonment upon the offender and the implication of that sentence upon his prospects for release. 33 In a case such as the present where the offender is aged 73, has health issues that will affect his ability to cope with imprisonment and suffers intellectual disabilities, whatever be their effect upon his appreciation of the seriousness of his conduct, general deterrence will have little role to play in the length of the sentence to be imposed. This is simply an application of the sentencing principle, found chiefly in sentencing mentally handicapped offenders, that a particular offender may not be a suitable person upon whom to visit the full extent of general deterrence by making an example of him to others. 34 In any event the fact that, after more than 30 years of non-offending since the commission of the crimes, and despite his age, health issues and intellectual disabilities, the offender is being sent to prison for the first time must have a very significant deterrent effect upon potential offenders. To moderate the need for general deterrence when deciding upon the length of the sentence to impose in such a case as that of the applicant could hardly be taken as encouragement to others to offend or to lead others to think that they will be treated with the same leniency if they offend in the same way. 35 The Judge indicated that he was moderating the need for general deterrence in this case. Just why he was taking that course or the extent of the moderation was not made clear. The statement was made in the context of a consideration of the applicant's mental state at the time of the offending and the significance of his "intellectual deficiency" and its impact upon his appreciation of the wrongfulness of his conduct. 36 With respect I believe that the issue of the relevance of general deterrence went much further than that. On simply an evaluation of the mental state of the applicant at the time of the offences, I doubt that the moderation of the need for general deterrence would be very great. But an evaluation of the role and impact of general deterrence had to take into account the applicant as he stood for sentencing, including his age, his then mental capacities, and the impact of a deterrent sentence upon the applicant in terms of his prospects for release. 37 The ground of appeal in relation to the overall sentence was that the Judge failed to take into account a pattern of sentencing that existed at a time proximate to the offending or as determined by this Court in dealing with such cases. I do not believe that error is made out because I do not believe there is a pattern that can be gleaned from the cases or statistics. The cases determined by this Court do not seem to me to show that his Honour's sentencing discretion miscarried in this way. But I am satisfied that the sentence imposed was excessive because his Honour must have given too much weight to the need for general deterrence in the circumstances of this particular case. An overall head sentence of 17 years that his Honour intended to impose was, in my opinion, excessive in all the circumstances. 38 This is not to suggest that such a sentence would have been inappropriate to reflect the seriousness of the offending had the applicant been better able to serve such a sentence if he had been required to do so by parole being refused, as unlikely as that event might be. But as the applicant stood at the date of sentencing, such a sentence would have been unduly harsh having regard to not only his age but also to his mental and physical state and to the nature of his custody and its impact upon him. 39 A reduction in the overall sentence must result in a reduction in the overall minimum period the applicant is to serve, even having regard only to the approach taken by the Judge. But his Honour, in fixing the non-parole period, failed to have regard to what this Court said in AJB. This is probably because neither party referred his Honour to that case or the approach to sentencing for old offences that it adopts. The Judge found special circumstances based upon the applicant's age and the fact it was his first time in custody. He fixed the minimum period as 60 per cent of the overall sentence he imposed. But, as has been noted, on the corrected head sentence, the overall minimum period of custody is about 70 per cent. 40 In my opinion the overall minimum period fixed by the Judge was excessive even without having regard to what was said in AJB. But applying AJB the minimum period of custody should be no more than 45 per cent of the overall total sentence. It should be set at this level because of the very great seriousness of the offences committed by him. There must be an element of denunciation and retribution reflected in the non-parole period. 41 The third complaint is that some of the individual sentence themselves were manifestly excessive, in particular the sentences imposed for the indecent assault offences. One of the difficulties is that the Judge does not discriminate between particular offences falling into a particular category. So all the indecent assault offences were punished by a penalty of a fixed term of three years. The maximum penalty for any one of those offences was five years and after reduction by 20 percent, four years. A fixed term of three years is the equivalent of a non-parole period being 75 per cent of the maximum penalty for the offence less the discount for the plea of guilty. 42 This argument is somewhat technical because there were 8 indecent assault offences, and the sentences were made concurrent. However, the argument is made good and his Honour's manner of dealing with the offences was in breach of the accepted approach following the decision in Pearce v R [1998] HCA 57; 194 CLR 610. 43 The Court was taken to a number of cases concerned with sentencing for sexual offences against young children. Although the submission was made that certain cases were worst factually than the present, minds might differ about that assertion. In my opinion the facts of this matter, even though they involved substantially a single complainant, were within the worst category of offending of its kind. There were a host of aggravating features including the fact that the complainant became pregnant at the age of 13 and the termination of that pregnancy. As I had noted, this event did not stop the applicant's abuse of his daughter. The simple fact is that, because of his age and health, the applicant cannot now be required to serve a sentence anywhere approaching the severity necessary to reflect the objective gravity of his offending. 44 In my opinion the overall sentence should be 14 years 6 months, which is the equivalent of a sentence of 18 years less 20 per cent. The overall non-parole period should be 6 years 6 months. This means that the applicant would be eligible for release on 17 February 2013, about 6 months before his 80th birthday. Fixed terms have been imposed because of the sentences imposed for the offences of carnal knowledge by a father. Special circumstances exist for the reasons given in the judgment. There should be a partly cumulative sentence in respect of the offence against the complainant VH. 45 I propose the following orders:

1. Application for leave is granted and the appeal allowed.

2. The sentences of the District Court are quashed.

(a) For counts 1,4,5,7 to 10 (inclusive) on each count a fixed term of imprisonment of 18 months that commenced on 18 August 2006 and expired on 17 February 2008.

(b) On count 17 a fixed term of imprisonment of 1 year that commenced on 18 August 2007 and expired on 17 August 2008.

(c) For counts 2,3 and 6, on each count a fixed term of 4 years that commenced on 18 August 2008 and that expires on 17 August 2012.

(d) On counts 11 to 16 (inclusive) a minimum term of 3 years 6 months to commence on 18 August 2009 and expires on 17 February 2013 the date upon which the applicant is eligible to be released to parole. There is to be an additional term of 8 years from 18 February 2013 to expire on 17 February 2021. 46 R A HULME J: I agree with Howie J.

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