PK v Regina

Court of Criminal Appeal (NSW)|2012-08-29|Before: Macfarlan JA, Price J, McCallum J, MacFarlan JA, Callum J

Judgment 1MACFARLAN JA: I agree with McCallum J. 2PRICE J: I agree with McCallum J. 3McCALLUM J: PK seeks leave to appeal against the sentence passed on him in the District Court after he pleaded guilty to an offence of aggravated sexual intercourse with a child under the age of ten years contrary to s 66A(2) of the Crimes Act 1900. The sexual intercourse consisted in digital penetration of the vagina. The circumstance of aggravation was the infliction of actual bodily harm. However, the charge failed to identify whether the harm was alleged to have been inflicted intentionally or recklessly: cf s 66A(3)(a) of the Act. It will be necessary to return to that issue. 4Aggravated sexual intercourse with a child under ten is among the most serious of criminal offences in this State, carrying a maximum penalty of imprisonment for life. A standard non-parole period of 15 years is prescribed for the offence under s 54A of the Crimes (Sentencing Procedure) Act 1999 (item 10 of the Table). 5The applicant entered his plea of guilty at an early stage in the Local Court. The learned sentencing judge discounted the sentence by 25% to reflect the utilitarian value of the plea, as allowed under s 22 of the Crimes (Sentencing Procedure) Act 1999 and in accordance with the principles stated in R v Thomson & Houlton (2005) 115 A Crim R 104 at [160(iii)]. The judge sentenced the applicant to a term of imprisonment of 13 years with a non-parole period of 8 years. 6An appeal against sentence under s 5(1) of the Criminal Appeal Act 1912 may not be brought without the leave of the court. I am of the view that leave to appeal should be granted. The applicant has been sentenced to a lengthy term of imprisonment for an extremely serious sexual assault. The sentence was determined under the law as explained in the decision of this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168. After the sentence was determined, the High Court published its decision in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120, which overruled Way. Those circumstances raise issues of some complexity and importance in respect of the sentence imposed.

Circumstances of the offence 7The offence occurred in the home of a friend of the applicant, with whom the applicant was living temporarily. On Friday 2 July 2010, other family members came to visit with the intention of staying for the weekend. They had a daughter who was 13 months old. She was the victim of the offence. The applicant was 18 years old at that time. 8The adults began drinking in the late afternoon. At about 10.30 pm the child's mother moved her into the front bedroom, asleep in her pram. That was the room usually occupied by the applicant but he was to sleep on the lounge while the other family members were visiting. 9At some point after moving her into the front bedroom, the child's mother went to check on her and found the light on and the door open. She saw the applicant in the room rocking the pram. He told the child's mother that the child was crying and that he was trying to settle her. The mother said she would settle the child and he left the room. The mother changed the child's nappy and gave her a bottle. 10About half an hour later, the adults including the applicant were sitting around a fire in the backyard when the applicant said that he needed to use the computer "to sort out [his] ABN". One of the other adults also wanted to use the computer and so went with him. While the two men were at the computer, the child began crying in the room opposite. The applicant went straight to her. The child's mother then arrived and picked up the child to comfort her. After settling the child, the mother went to the lounge room. 11Shortly afterwards, the mother went to use the computer. When her partner (the child's father) came to say goodnight, he saw the applicant walking out of the room in which the child had been sleeping. The mother and the father then heard the child crying and went to check on her. The mother found that three of the buttons at the bottom of the child's bunny suit were undone and that her nappy was crooked. Upon changing the nappy, the mother found a small clot of blood in the nappy. 12The mother ran to the applicant and confronted him, punching him and shouting at him. He left the house. Police were called and the child was taken to hospital, where an examination revealed that she had been penetrated vaginally. The force of the penetration had caused a perianal laceration, which required sutures. 13The applicant was arrested that night. He initially denied touching the child. His plea of guilty was entered after fingernail clippings from his right hand were linked to the child by DNA evidence. He was sentenced on the basis that he had penetrated the child's vagina with his right index finger for a period of four or five seconds. 14The judge found that the child would not remember the offence. The Crown had not suggested otherwise at the proceedings on sentence. It was acknowledged that the evidence of the Crown's paediatric expert (who was not ultimately called to give evidence) would have been that the prognosis for the child was good. However, "victim impact statements" from the parents of the child adverted to their struggling with the dilemma of how to deal with their knowledge of the offence, preferring on the one hand to protect the child by never telling her but concerned on the other hand as to the consequences if she should find out from another source or draw an inference from any physical indications at the time of her first sexual relations as an adult.

Subjective circumstances of the applicant 15The applicant was assessed by a psychologist, Dr Katie Seidler, for the purpose of the proceedings on sentence. Dr Seidler holds a PhD in psychology in the field of interpersonal crime. 16Perhaps unsurprisingly, having regard to the nature of the offence, Dr Seidler's report records that the applicant had "a very difficult early life that exposed him to a number of salient developmental risks, including abuse and neglect". She described him as "vulnerable" as a result of those matters. His mother was a heroin addict whose drug use evidently interfered substantially with her capacity to care for her six children. Two were removed from her care and placed with her mother. Two later children from a different father were also removed from her care and placed in separate foster homes before being brought back into the extended family with the help of the applicant's paternal grandmother, who also ultimately took the applicant and his twin sister into her home. 17The applicant felt that his mother had never been a mother to him. She separated from his father when the applicant was five years old and told him that his father had been killed in a car accident. That was a lie. Five years later, the applicant was understandably shocked and confused when his father sought him out. It was at that age that the applicant went to live with his father and grandmother. Before returning to the care of his father, the applicant had been sexually assaulted on several occasions by a stranger near his mother's home. He had also been physically assaulted many times by his mother's various partners. 18The applicant frankly acknowledged, both to Dr Seidler and at the proceedings on sentence, that he experiences sexual fantasies of young female children at times. Dr Seidler described him as being "somewhat confused" about those thoughts and unable to identify any discrete pattern to his thinking in that regard, which was generally spontaneous. She explained that there was evidence of his making "an early and distorted transition into sex" (evidently a reference to the series of sexual assaults committed against him before he was ten). She said that his spontaneous sexual thoughts of children were "quite distressing for him" and that he did not reinforce such thoughts through masturbation or the pursuit of pornographic images depicting children. 19The applicant frankly acknowledged that he had experienced sexual thoughts in relation to the victim in the present case. He said that, distressed by those thoughts, he had intended to use the computer on the evening of the offence to view pornography as an aid to masturbation, in order to relieve those feelings. However, he had been unable to do so, since his friend had followed him to the computer room. He was angry at himself, tearful and remorseful as a result of his offending behaviour. Dr Seidler said: [The applicant] demonstrated a satisfactory and, in fact, quite sophisticated understanding of consent and sexual boundaries and he did not endorse attitudes specific to child sexual abuse. [The applicant] demonstrated some insight into the potential consequences of sexual abuse for children, thereby expressing some empathy for victims of such abuse.

Grounds of appeal 20The applicant relies upon two grounds of appeal but there is a measure of overlap between them. Ground one is that the non-parole period and overall term are manifestly excessive. That is a ground which can be relied upon on its own, as revealing latent error. In the present case, however, four particular alleged errors are specified to sustain the contention. It is convenient first to consider whether patent error is established in any particular respect before turning to the issue whether the sentence was manifestly excessive. 21One of the particular errors relied upon is error in the consideration of the standard non-parole period (ground 1(b)). That ground implicitly invokes the decision of the High Court in Muldrock. Ground two expressly relies on Muldrock. The two Muldrock grounds are considered together below.

The judge's assessment of objective seriousness 22Ground 1(a) is: The Sentencing Judge erred in finding the objective seriousness was slightly above the middle range. 23The judge said: I am required to assess the objective gravity of this offence and determine how it compares to an offence in the middle of the range of objective seriousness. 24The judge assessed the offence to be "slightly above" the middle of the range of objective seriousness. 25As already noted, those remarks were made in the context that his Honour was applying the law as it was understood before the decision of the High Court in Muldrock. The effect of that decision is considered separately in respect of grounds 1(b) and 2 below. For present purposes, it is enough to observe that, following Muldrock, whilst an assessment of the objective seriousness of the offending remains an essential aspect of the sentencing task, the sentencing court need not, and arguably should not, attempt to quantify the distance between the actual offence before the court and a putative offence in the middle of the range: see Muldrock at [29]. In saying so, I mean no criticism whatsoever of the sentencing judge in the present case. It behoves this Court to acknowledge that, prior to the decision in Muldrock, sentencing judges were not infrequently criticised by this Court for failing to make such a finding. 26What has been emphasised in decisions since Muldrock is that it remains important to assess the objective criminality of the offending, which has always been an essential aspect of the sentencing process. In that context, the view has been expressed that there is no vice in doing so according to a scale of seriousness: Zreika v R [2012] NSWCCA 44 at [45] per Johnson J (citing R v Koloamatangi [2011] NSWCCA 288 at [18]-[19] per Basten JA); McClellan CJ at CL agreeing at [1]; Rothman J not addressing that point (see [128] to [130]). However, as I read Muldrock, the usefulness of comparing the particular offence before the court with the hypothetical mid-point offence has been doubted. 27The judge clearly turned his mind to the critical task of assessing the objective seriousness of the offending. His Honour listed the matters taken into account in that assessment, which were the fact that the offence was planned (albeit to a limited extent); the fact that the offender had a sexual fantasy involving the child and decided to act upon it; the nature of the sexual act itself (being digital penetration of the vagina); the fact that significant injury resulted entailing a laceration requiring sutures; the extremely young age of the child and her extreme vulnerability. In favour of the applicant, the judge took into account the fact that the offence was committed for a relatively short period of time and was an isolated offence. Balancing those factors, the judge made the assessment that the offence was "slightly above" the middle of the range of objective seriousness. 28The applicant submitted that this finding equated to a finding of objective seriousness "in the high range". That submission assumed that the judge placed the present offence slightly above all offences in the middle of the range (rather than slightly above the midpoint of the whole range). I do not think, on a fair reading of the remarks on sentence, that is what his Honour meant. 29A separate matter relied upon by the applicant was the question of the state of mind attributed to him by the sentencing judge. As already noted, the circumstance of aggravation relied upon by the Crown was the infliction of actual bodily harm. Section 66A(3) contemplates that liability for the aggravated offence on that basis will attach where the infliction of harm is intentional or, alternatively, reckless. The Crown acknowledges that the Court Attendance Notice failed to identify which state of mind was relied upon in the present charge. It was indicated at the appeal that the state of mind relied upon was in fact recklessness, not intention to harm. 30In those circumstances, the applicant submitted that, given his Honour's finding that the objective seriousness was slightly above the middle range (which, as already noted, the applicant equates to a finding that it was in the high range), it is open to conclude that his Honour proceeded on the basis that the infliction of injury was intentional. It was submitted that, if that is what occurred, it was an error, since intentional harm is an aggravating circumstance which had to be proved beyond reasonable doubt in accordance with the principles stated in R v Olbrich (1999) 199 CLR 270 at [27] to [28]. 31The Crown implicitly accepted that, if that is the basis on which the judge sentenced the applicant, the sentence entailed error. However, the Crown contended that the proceedings on sentence were conducted on the basis that the infliction of harm was only incidental to the offence and was not intentional. It was submitted that his Honour clearly proceeded to sentence on that basis. 32That is plainly right, in my view. There was no reference in the evidence or the submissions of the Crown to any suggestion that the applicant intended to inflict actual bodily harm on the child. The unchallenged evidence of Dr Seidler was that the applicant described his decision to offend as having been "quite spontaneous" and that "he did not think about the potential consequences of his actions at the time, either for the victim, himself, or for others". 33The applicant gave evidence at the proceedings on sentence and was cross-examined on that statement by the Crown. The cross-examiner, though evidently sceptical, did not put to the applicant that the harm caused by the offence was intentional. The relevant cross examination (at T14) went as follows: Q. Also, in that report [Ex. B] you said, "At the time of the offence you didn't think of any of the potential consequences of your actions either for the victim, for himself or for the others", is that correct? A. That's correct. Q. This was a 13 month old baby sir, you didn't think digitally penetrating a 13 month old baby would have any potential consequences? A. That's correct. 34The only other reference to the applicant's state of mind was in the oral submissions on behalf of the applicant, which expressly characterised the harm as "best described as reckless" (T20). 35In the circumstances, although the judge made no specific reference to the issue, I am satisfied that his Honour proceeded on the basis of recklessness as opposed to intentional harm. 36Separately, the applicant submitted that a proper characterisation of the objective seriousness of the offence would place it far lower down the scale. The submissions emphasised the importance of avoiding a visceral rather than intellectual reaction to the offence. In the circumstances of this case, which must be acknowledged as being shocking in the extreme, that is an appropriate caution. That said, in my view, the assessment was eminently one within the sentencing discretion of the Judge. None of the matters referred to in the applicant's submissions, in so far as they are relevant in the present context, was overlooked by his Honour. 37The Crown submitted that there were other features of the offence not taken into account by his Honour which might have been regarded as increasing its objective seriousness. One was the fact that the child was unable to complain. I think it is implicit in his Honour's reference to her helplessness and extreme vulnerability that his Honour took that into account. Separately, however, the Crown noted the applicant's persistence in entering the room where the child was sleeping and the fact that the offence involved a breach of trust in that the applicant gained access to the child while temporarily living in the home of her grandfather and being trusted to share that home. In my view, those are relevant factors, attention to which might reasonably have increased the judge's assessment of the seriousness of the offending to some degree. 38The applicant's submission ultimately reduced to a complaint that his Honour placed "too much weight" on certain factors. I am satisfied that it was open to the judge to make the finding he did, assessing the objective seriousness of the offending as being slightly above the midpoint of the range. The applicant has not demonstrated error in that assessment.

The risk of psychological harm 39Ground 1(c) is: The sentencing judge erred in taking into account the risk that psychological harm may eventuate if the victim ever finds out about this assault. 40The judge said (at ROS 2-3): But issues remain as to whether there will be lasting psychological impact on [the child]. This offence is unusual because of that circumstance. Infantile amnesia, which affects all children of [the child's] age, will mean that she will have no direct memory of these events as she grows up. It is unclear whether the experience will nevertheless cause psychological harm. There is no evidence that it will. But of course there is the risk that [the child] will learn about what has happened to her and there is an associated risk of related psychological harm if that occurs. [....] As I have explained it is difficult if not impossible to know what harm will befall [the child] in a psychological sense as a result of this conduct. Nevertheless, there is, as I have tried to explain, a real risk of psychological harm in the future. 41The Crown acknowledged that, if the judge had proceeded to take the "real risk" of harm into account as an aggravating feature of the offending without making a finding beyond reasonable doubt, that would have entailed error. However, it was submitted that his Honour did not take that approach. 42Significantly, as noted by the Crown, his Honour took care to list the factors relevant to his assessment of the objective seriousness of the offending, and did not refer to the risk of future harm in that part of the remarks. I am not persuaded that his Honour took that risk into account as an aggravating feature of the offence.

Applicant's subjective circumstances 43Ground 1(d) is: That the Sentencing Judge erred in attaching insufficient weight to the applicant's subjective circumstances. 44The judge said (at ROS 7): The offender is in many respects deserving of sympathy. He has had a terrible upbringing, which is well described in the psychologist's report. But in truth many children suffer upbringings of that kind and very few of them commit offences, especially as serious as this. I am sure that the sentence I am about to announce will be seen by some as too harsh and by others, particularly [the child's] parents, as lenient. It is nevertheless, I am satisfied, the sentence which the law requires me to impose. 45It was submitted on behalf of the applicant that the judge gave scant regard to what would normally amount to a substantial subjective case. It was further submitted that the remarks set out above disclose error in that they suggest compromise rather than the application of principle. 46I do not accept those submissions. It should be noted that the judge passed sentence immediately upon the conclusion of the proceedings on sentence, which had evidently proceeded in the presence of the child's parents (T2.21). His Honour's remarks on sentence must be read in that context. Economy of expression in an ex tempore statement of reasons should not too readily be assumed to reveal oversight. 47Further, in my view, the contention that the remarks suggest compromise must be rejected. On the contrary, I would construe those remarks as a firm but respectful explanation directed to the family of the victim that their views, whilst acknowledged, were not the determinant of the proper sentence. 48It is well-established that the weight to be given to any individual factor in passing sentence is a matter properly falling within the discretion of the sentencing judge and that the circumstances in which this Court will interfere with such assessments are narrowly confined: R v Baker [2000] NSWCCA 85 at [11] per Spigelman CJ; Grove and Hidden JJ agreeing at [22] and [23] respectively. I am not persuaded that his Honour's remarks reveal error in that respect.

The "Muldrock error" 49It remains to consider the two Muldrock grounds. As already noted, ground 1(b) is relied upon under the rubric of revealing manifest error. That ground is: The sentencing judge erred in adopting a two-stage approach to sentencing and consideration of impact of the standard non-parole period. 50Ground 2 is: The exercising of the sentencing discretion miscarried for the reasons identified in Muldrock v The Queen [2011] HSC 39 and the applicant should be re-sentenced. 51The High Court decision in Muldrock held that the decision of this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168 was wrongly decided. However, as noted by Allsop P in Williams v R [2012] NSWCCA 172 at [2], this does not mean that all sentences passed before Muldrock (for offences that have a standard non-parole period) are necessarily vitiated by operative error. 52As in Williams, the learned sentencing judge in the present case was careful to follow the approach required by the authorities then binding on his Honour. The critical task is to ascertain whether, guided by the thinking of the jurisprudence before Muldrock, his Honour tethered himself to the standard non-parole period as a mandatory starting post and, failing to identify reasons for moving away from it, remained too close to the post. 53In my view, the remarks on sentence reveal that his Honour did proceed to sentence the applicant on that basis which, while correct at the time, is now understood to entail error. 54The judge said: As I mentioned, the offence carries with it a standard non-parole period of fifteen years imprisonment. Of course, that is not of direct application because of the plea of guilty. That plea came at the earliest opportunity and in order to reflect the utilitarian value of that plea I will impose a sentence on the offender which is twenty-five per cent less than it would otherwise have been. Before considering the objective gravity of the offence, it is worth looking at the standard non-parole period from this point of view. Standard non-parole periods do not apply to those who commit offences when they are less than eighteen. Thus, the sentence that would be imposed upon an offender who did exactly what this offender did, and who had exactly the offender's background but who was seventeen years and eleven months old at the time, would be substantially different to the sentence which the standard non-parole period would suggest would be appropriate for an offence in the middle of the range of objective seriousness for offences of this type. The offender's age, that is, that he was only three months above the age that made the standard non-parole period applicable to him, is a significant factor that I have taken into account in determining to impose a non-parole period on him, which varies quite a bit from the standard non-parole period. 55In my view, those remarks make it plain that his Honour's reasoning process adopted the two-step approach condemned in Muldrock. His Honour expressly observed that, had the applicant been just under 18 rather than just over 18 at the time of the offence (such that the standard non-parole period did not apply), his youth would have been a factor that warranted a sentence substantially lower than the sentence his Honour was required to impose having regard to the standard non-parole period. That reasoning points inexorably to the conclusion that, whilst taking into account the plea of guilty, his Honour felt bound to begin at the point indicated by the combination of the standard non-parole period and the positioning of this offence slightly above the mid-point of the range, then moving away from that point only to the extent he considered the subjective case allowed. 56I am satisfied that the sentencing decision entailed error in that respect. For the reasons already noted, that conclusion does not imply any criticism of the sentencing judge, who dutifully applied the law as it then stood.

Is a lesser sentence warranted in law? 57It remains to consider how the appeal should be determined. The demonstration of error does not necessarily produce the result that the sentence must be reduced. The Court's power to intervene is contained in s 6(3) of the Criminal Appeal Act, which provides: On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal. 58As already noted, the so-called Muldrock error was relied upon in the present case both as a discrete, patent error and (perhaps unnecessarily) as an aspect of the contention that the sentence was manifestly excessive. In my view, it is tolerably clear that, had the sentencing judge not felt bound to take the approach subsequently disapproved in Muldrock, a lesser sentence, at the very least entailing a shorter non-parole period, would have been passed. But for an application of the principles that applied before Muldrock was decided, the judge would have imposed a "substantially different" sentence, as indicated by the remarks on sentence at page 5. It follows, in my view, that the established error was operative in the sense that it produced a sentence that was higher than the sentence that would otherwise have been passed. 59However, that conclusion does not in itself mandate interference by this Court. The correct approach to the exercise of the Court's power under s 6(3) was discussed in R v Johnson [2005] NSWCCA 186. Following a helpful review of some earlier authorities on that issue, Hunt AJA said in that case (at [33]-[34]; R S Hulme and Johnson JJ agreeing at [50] and [57] respectively): 33 What all of these cases emphasise is that the mere existence of error in the sentence imposed does not permit this Court to substitute another sentence for it unless such substituted sentence is warranted in law. Section 5(1)(c) of the Criminal Appeal Act permits a person convicted to appeal with leave against the sentence imposed. Section 6(3) permits the Court to impose another sentence in substitution for that sentence only if it is of opinion that such other sentence is warranted in law and should have been imposed. Neither provision requires this Court to identify any particular error before exercising that power. Indeed, as House v The King (1936) 55 CLR 499 at 504-505 says, even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the sentencing discretion. 34 In such a situation where the precise nature of the error is not apparent, the Court will inevitably have concluded that the sentence imposed was outside the appropriate range for the circumstances of the particular case, and it must determine for itself what sentence is warranted in law in relation to those circumstances. In cases where the error is apparent, the Court must first consider whether the sentence imposed is outside the appropriate range for the circumstances of the particular case unaffected by that error and, if it is, determine for itself what sentence is warranted in law in substitution for that sentence. 60 It is clear from the discussion preceding those remarks that the phrase "outside the appropriate range" was used in that context as being synonymous with the description of a sentence as excessive: see [29] to [31]. 61I am satisfied that the sentence imposed in the present case was, in all the circumstances, excessive, particularly in the imposition of a non-parole period of 8 years. An offence of the nature of that committed by the applicant is rightly regarded as truly abhorrent, warranting due denunciation and recognition of the harm done to the victim and the community. Even so, I consider that a non-parole period of 8 years for that offence and for a man of the applicant's background, who had just barely attained his majority at the time of the offence, is excessive. 62As to the offence itself, it must be remembered that the form of intercourse was digital penetration for a short time. It caused a disturbing physical injury but that is an element of the offence and not to be taken into account by way of aggravation. 63However, since the rehabilitation of the applicant is so important in the present case, I would propose only a very slight reduction in the total term of the sentence. Whilst the report of Dr Seidler suggests that the applicant is a good candidate for rehabilitation, the bare fact that he experienced sexual feelings towards a 13-month old child is deeply troubling and warrants the imposition of a sentence that will allow lengthy, close supervision on parole. The applicant's youth and plain need for supervision amount to special circumstances warranting a balance of term substantially exceeding one-third of the non-parole period: s 44(2) of the Crimes (Sentencing Procedure) Act. 64Since being in custody, the applicant has taken steps towards obtaining a tertiary qualification in engineering and has received favourable work reports. Those matters sustain Dr Seidler's optimistic view as to his prospects of rehabilitation. 65In my view, the applicant should be re-sentenced to a term of imprisonment with a non-parole period of six years and a balance of term of six years. Structured in that way, the sentence meets the object of promoting the rehabilitation of the applicant whilst clearly denunciating the offence and providing appropriate protection for the community in the event that the applicant does not make satisfactory progress in his rehabilitation. 66The orders I propose are:

That leave to appeal be granted. 2.That the appeal be allowed. 3.That the sentence at first instance be quashed and, in lieu thereof, the applicant be sentenced to a term of imprisonment with a non-parole period of 6 years commencing on 3 July 2010 and expiring on 2 July 2016 and a balance of term of 6 years expiring on 2 July 2022. The first date on which the applicant is eligible for parole is 2 July 2016.

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: 11 December 2012

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