PWB v R

Court of Criminal Appeal (NSW)|2011-02-02|Before: Hulme J, Harrison J, Beazley JA

Judgment 1BEAZLEY JA : The appeal in this matter was heard on 2 February 2011 and the Court's orders were made on 4 March 2011. As I reached a different view from Hulme J and Harrison J as to the appropriate sentence that should have been imposed, I set out below my reasons for decision. In doing so, I have had the benefit of reading in draft the reasons of Hulme J, who has set out the relevant facts and issues. I am therefore able to express my reasons in reasonably brief terms. 2The Applicant sought leave to appeal from the sentences imposed on him by English DCJ in respect of two offences, being counts 1 and 3 on the indictment, to which the Applicant pleaded guilty. Count 1 involved a charge of assault and at the time of the assault committing an act of indecency upon a person under the age of 16 years contrary to the Crimes Act 1900, s 61E(1). RB was the victim of this offence. The Applicant was sentenced to a fixed term of imprisonment of 1 year from 20 November 2009 for this offence. Count 3 involved a charge of assault and at the time of the assault committing an act of indecency upon a child then under the age of 10 years contrary to the Crimes Act , s 61M(2). JB was the victim of this offence. 3The sentencing judge, English DCJ, sentenced the Applicant to a term of imprisonment of 3 years 4 months and 24 days including a non-parole period of 1 year, both commencing on 20 November 2010, for this offence. The second sentence was made totally cumulative upon the first. 4The grounds of appeal upon which the Applicant relies are set out at 27 of Hulme J's judgment. I agree that grounds 1, 2, 3 and 5 have been made out and that ground 4 fails. I am also of the view that some sentence other than that imposed by the sentencing judge is warranted in law, most particularly having regard to the sentencing standards that applied at the time the offences were committed. In this regard, the research undertaken by Hulme J is most valuable and has greatly assisted me in the determination of the sentence that I consider ought to be imposed. However, I have reached a slightly different result from the majority in this Court in the sentence that should be imposed. Accordingly, I set out my reasons for the determination I have made. 5The sentencing judge stated that the Applicant was 17 or 18 years of age at the time of the offence in count 1. However, as the chronology of events and circumstances set out in the judgment of Hulme J at 45 indicates, this offence was committed at some time between 1987 and 1988. Accordingly, the Applicant may not have turned 17 when the offence was in fact committed, although he would have been at least 16 years 8 months, give or take a few days. For the purposes of sentencing, the Applicant was therefore entitled to be treated as a juvenile offender, although the difference in the level of maturity of a young man who was almost 17 and one who was 17 would not have been great. 6The chronology at 48 of Hulme J's judgment indicates that, in respect of the offence in count 3, the Applicant ceased abusing JB sometime between 1993 and 1994. At that time, the Applicant was 23-24 years of age. There was no evidence to indicate why the Applicant ceased offending at this time. The only known fact is that he did stop offending at this point. It may have been because he was then living away from the family home with his girlfriend, so that the opportunity for continuing the abuse did not present itself. It may or may not have been because he recognised his actions were wrong. The evidence simply does not enable any inference to be drawn as to any underlying reason or motive. Accordingly, I consider that that fact should be viewed neutrally when considering the sentence that should be imposed. 7There is also an issue that arises in the sentencing in this matter relating to the ages of the victims at the time that the appellant committed the offences to which he pleaded guilty. On this issue, I would approach the re-sentencing of the Applicant having regard to the following considerations. 8First, the legislation in force at the time that the two offences were committed drew a distinction between offences involving acts of indecency upon a young person under the age of 10: see s 61M(2), and those not under 10: see s 61E(1). The distinction is not a barren one, its importance being reflected in the significantly greater maximum penalty that applied in respect of an offence under s 61M(2) as compared to the maximum penalty in respect of an offence under s 61E(1): 10 years as compared to 4 years respectively. 9A difference of 250 per cent in penalty must be understood as a reflection of the legislature's and therefore, society's condemnation of offences against young persons under the age of 10. In short, an offence under s 61M(2) was intended by the legislature to be more serious than an offence under s 61E(1). The current legislation in this area continues to provide for the differential treatment of sexual offences against younger persons, although the difference in the maximum sentence for the equivalent offences has been reduced to 3 years. The reduction has come about because the maximum sentence for the equivalent offence to count 1 has been increased to 7 years. 10Secondly, the Crimes (Sentencing Procedure) Act 1999, s 21A provides a non-exhaustive list of aggravating and mitigating factors to be taken into account in determining the appropriate sentence for a particular offence committed by a particular offender. One of the aggravating factors that may be taken into account in a case of child sexual assault is that the victim is vulnerable, for example, because the victim is very young or has a disability: s 21A(2)(l). 11Thirdly, the case law recognises the seriousness of sexual offending against younger persons, including, as a general proposition, that the younger the child, the more defenceless and vulnerable the child will be. The case law, over the last two decades at least, is consistently to the effect that in sexual offence cases, the younger the child, the more serious the criminality: see, by way of a representative group of cases: R v T (1990) 47 A Crim R 29; R v AJP (2004) 150 A Crim R 575; Shannon v The Queen [2006] NSWCCA 39; MLP v R (2006) 164 A Crim R 93; FV v The Queen [2006] NSWCCA 237; R v PGM (2008) 187 A Crim R 152. 12Next, the case law recognises that even where the age of the victim is an element of the offence and although a court must avoid double counting when determining the existence or degree of an aggravating factor, a sentencing judge may still take into account the age of a child within the range of ages specified in the offence. This principle again recognises the particular vulnerability of a child of young years. See Tadrosse [2005] NSWCCA 145; 65 NSWLR 740; R v Pearson [2005] NSWCCA 116 at [33]-[35]; R v JTAC [2005] NSWCCA 345 Shannon at [28]-[29]; JAH v R [2006] NSWCCA 250 at [25]-[26]. 13A research study undertaken by Emeritus Professor Kim Oates, Faculty of Medicine, University of Sydney, Discipline of Paediatrics and Child Health at the Childrens Hospital at Westmead confirms what the law had already discerned. Professor Oates noted in his paper, " Problems and prejudices for the sexually abused child " (2007) 81 ALJ 313 that one of the most robust findings of research into children's memory is that memory in children from 6 years of age and up compares favourably with adults and is more accurate and less suggestible than that of younger children. 14Chief Justice Spigelman cited research in this area in JJB v Regina [2006] NSWCCA 126; (2006) 161 A Crim R 187 at [6]-[7]. His Honour noted that there is a substantial body of psychological research indicating that children, even very young children, give reliable evidence, including in respect of a child's ability to recall stressful events. 15Professor Oates' paper was directed to the reliability of children's evidence in sexual abuse cases, as was the research to which the Chief Justice referred. Nonetheless, it seems to me that if a 6 year old child's memory is reliable, the likelihood that the child, both at the time and more particularly later in life, will have a real sense of violation, is a real one. I see no basis for differentiation, in this regard, in the impact on children of different ages. 16Next, it must be observed that the Court's concern is with the application of legal principle to facts. I have already referred to the legislation and the legal principles that treat sexual offending against younger children as a more serious crime than against older children and the relevance that may be given to the age of a victim within the range of ages in a given offence. There was no evidence before the Court as to the direct impact on RB and JB respectively of the relevant offence of which the Applicant was convicted. Accordingly, the Court should not infer that the victims were, or more relevantly were not, affected or affected to any particular degree by the Applicant's criminal conduct. However, the Court must treat the offences with the seriousness that is inherent in the legislation, as has been made explicit in the case law. 17I am cognisant that Professor Oates' article to which I have made reference was not in evidence before the trial judge. Nonetheless, as I understand my judicial function, it is not inappropriate to have recourse to learned journal articles if they assist in an understanding of matters upon which the Court may not necessarily be qualified to comment. However, if it is impermissible to refer to such material in formulating my own approach to sentencing in this matter, there is the legislation and the long body of case law to which I have referred which leads me to the same conclusion. 18As I have said, I accept that her Honour failed properly to have regard to the sentencing standards at the time the offences were committed. I also agree with Hulme J that her Honour incorrectly approached the sentencing task by reference to offending with which the Applicant was not charged. However, each offence of which the Applicant was convicted was a serious offence. The respective age of each of the victims was an aggravating factor under the Crimes (Sentencing Procedure) Act , s 21A(2)(l). RB would have been barely 10 years old at the time of the offence against her and may even have been 9 years of age. JB was also only about 6 years of age. 19The Applicant abused his position in the family as an older brother. Although he was not in a position of parental authority, the relationship between the siblings nonetheless called for trust, respect and support, not abuse. 20The Court is also required to consider the factors personal to the Applicant, including mitigating circumstances. In this case, the mitigating circumstances to which I would have particular regard are the unlikelihood of the Applicant re-offending: s 21A(3)(g); the Applicant's good prospects of rehabilitation: s 21A(3)(h); and the remorse he showed in the terms required by s 21A(i)(i) and (ii). 21As I have indicated, my view as to the sentences that ought to have been imposed is different from that of Hulme and Harrison JJ. On re-sentence, I consider the Applicant should have been sentenced to a period of 9 months imprisonment on count 1 commencing on 20 November 2009. In re-sentencing the Applicant on count 3, I consider that he should have been sentenced to imprisonment for a non-parole period of 1 year with an additional term of 1 year. I consider that there should have been partial accumulation of this sentence on the sentence imposed on count 1 so as to commence on 20 March 2010, with the additional term of 12 months commencing on 20 March 2011. 22RS HULME J: The Applicant in these proceedings sought leave to appeal against sentences imposed by English DCJ on 20 November 2009 in respect of two offences to which he pleaded guilty. The offences, which were the subject of counts 1 and 3 on an indictment, were:- (1) That on a day between 1 January 1987 and 31 December 1988 he did assault RB and at the time of the assault committed an act of indecency upon her, she then being a person under the age of 16 years. (3) That on a day between 17 March 1991 and 31 December 1991 he did assault JB, a child then under the age of 10 years and at the time of the assault committed an act of indecency upon her. 23Count 1 charged an offence against s 61E(1) of the Crimes Act, 1900 , a section which has been repealed but which carried a maximum penalty of 4 years imprisonment. Count 3 charged an offence contrary to s 61M(2), since amended, of that Act and which at the time carried a maximum penalty of 10 years imprisonment. It will be convenient hereafter to refer to this offence as the second offence. 24The sentences imposed were:- (i) Imprisonment for a fixed term of 1 year from 20 November 2009; and (ii) Imprisonment for 3 years 4 months and 24 days, including a non-parole period of 1 year, both periods commencing on 20 November 2010. 25Before all of the reasons of the members of the Court could be completed, Harrison J and I formed the view that the result of the appeal should entail the Applicant being released from custody on 5 March 2011. Beazley JA agreed with the first 3 of the orders proposed but differed in respect of the balance. Accordingly on 4 March last the Court indicated that its reasons would be published later and made, in the case of orders (iv), (v) and (vi) by majority, the following orders:- (i) Leave to appeal granted. (ii) Allow the appeal. (iii) Quash the sentences imposed by English DCJ on 20 November 2009. (iv) In respect of the first count, sentence the Applicant to imprisonment for a fixed term of 4 months commencing on 20 November 2009. (v) In respect of the third count, sentence the Applicant to imprisonment for a non-parole period of 12 months commencing on 5 March 2010 together with a further term of 12 months commencing on 5 March 2011. (vi) Direct that the Applicant be released on parole on 5 March 2011. 26These are the reasons that led me to join in those orders. 27The grounds of appeal are:- (i) The second offence... was committed in 1991. The sentencing Judge erred in having regard to the standard non-parole period. (ii) The sentence imposed on count 1 was manifestly excessive. (iii) (a) Her Honour imposed sentences which were entirely cumulative. Her Honour erred in failing to impose sentences which were partially concurrent. (b) The overall sentence was manifestly excessive. (iv) Her Honour erred in finding that it was inappropriate to assess the moral culpability of the second count (sic) by having regard to the sexual abuse that the Applicant himself had suffered. (v) Her Honour erred in failing to regard the delay as a matter of mitigation. 28It is clear, and the Crown in fact conceded, that her Honour erred in the respect alleged in ground 1. In reliance on s 6(3) of the Criminal Appeal Act 1912 , the Crown, however, submitted that no lesser sentence for the second offence should have been passed and accordingly any appeal against that sentence should be dismissed. In the case of the first count, the Crown submitted also that the sentence imposed fell within the legitimate exercise of her Honour's sentencing discretion. 29The Applicant (PWB), RB and JB are siblings. The Applicant was born in May 1970, the second child of his parents. RB was born in September 1976, the sixth child. JB was born on 14 September 1985, the tenth child. 30In 1982 when RB was about 6 years and the Applicant about 12 years, he commenced to touch her genital area or cause her to touch his, conduct which continued in the years up until 1988. The circumstances of the offence charged involved the Applicant directing RB to urinate while sitting on a toilet during the course of which he slid his hand underneath her, touching her body as he did so, and holding his hand in her stream of urine. 31In 1988 RB's school class received sex education, an event which gave her the confidence to tell the Applicant that if he touched her again she would tell their parents. From that time onwards the Applicant did not repeat his conduct. When RB was aged 16 she again confronted the Applicant about his conduct. He acknowledged the abuse, said he was sorry and was crying during the course of this conversation. Thereafter RB tried to avoid contact with the Applicant and her apparent anger towards him was noticed within the family. RB's parents made enquiries of her. She informed them of the sexual abuse. A few days later his parents confronted the Applicant who admitted the abuse, said he did not know why he had done it and denied having sexually abused any one else. 32JB recalls that the Applicant began to touch her in a sexual way shortly before she began school when she was aged 4 and this touching continued until she was aged 8. The conduct, the subject of the second charge, occurred when JB was aged 5 or 6 and playing in an upstairs bedroom of the house, her parents being elsewhere in the premises. In the Statement of Facts it was said that the Applicant came into the room and "began to touch JB's genitals with his fingers underneath her clothing". There was no more fulsome description of the offence. 33When JB was in year 6 she also received some sex education and informed a friend that the Applicant had touched her sexually. In April 2006 she informed another brother of the abuse. He told their mother who thereafter discussed the topic with JB. 34At about this time RB and JB became aware of the conduct involving the other. A meeting was arranged. When confronted by his sisters and mother, the Applicant admitted having sexually touched JB when she was in primary school. The abuse was reported to police, RB and JB apparently providing statements to the police in June 2007. The police arranged for the Applicant to attend Maitland Police Station on 30 October 2007. He was accompanied by a solicitor and declined to be interviewed. He was arrested on 17 June 2008 and on 13 May 2009 he was committed for trial in the District Court. 35Her Honour accepted that the Applicant had himself been the subject of sexual abuse. The evidence of this was contained in oral testimony of the Applicant, a Pre-Sentence Report and a report of a psychologist, Mr Warren. This abuse seems to have occurred when the Applicant was between the ages of 13 and 15 and at the hands of a Roman Catholic priest. 36The Applicant first consulted Mr Warren on 21 June 2006, then reporting the abuse to himself and that two of his sisters had reported his abuse towards them to DOCS. The Applicant continued seeing Mr Warren until July 2007, at which time the Applicant felt he was doing well. Mr Warren observed that the Applicant was responsive and committed in counselling at that time. 37Mr Warren was again consulted in 2009, obviously in light of the charges brought. He concluded, inter alia, that the Applicant's history was "the significant factor in his offending; though this history does not excuse that offending as he grew older", and rated the Applicant's risk of re-offending as extremely low. 38The author of the Pre-Sentence Report recorded that the Applicant had expressed shame and remorse for his involvement in the offences and the traumatic impact of his actions on the victims and indicated willingness to participate in counselling and treatment programs to ensure he does not repeat his offending. The Department of Corrective Services Specialist Community psychologist assessed the Applicant on the basis of the STATIC-99 actuarial test for recidivism as falling within the low risk category relative to other adult male sex offenders. 39Other subjective features to be noted include that the Applicant had no criminal record. He was educated to year 10, then completed an apprenticeship and has been in constant employment. He married in about 1996 and has three children aged between about 3 and 11. His wife and her family are supportive of him. 40Her Honour allowed the Applicant a discount of 15% for his pleas which she recorded as occurring on arraignment. She found that the Applicant was remorseful and contrite and has good prospects of rehabilitation. She concluded that he would spend some time on protection, and made a finding of special circumstances based upon his sentence constituting the first time in custody and the likelihood of him needing a lengthier than normal period of supervised parole to assist his re-integration into the community. 41Also in evidence during the sentencing proceedings were Victim Impact Statements by RB and JB. Each suggest a devastating impact in consequence of the Applicant's conduct towards their several authors although, fortunately both have married and, it would seem, have very satisfactory relationships with their husbands. 42Against this background, I turn to the issues that arise. It is convenient to deal with the grounds of appeal somewhat out of order.

Ground 1 The second offence... was committed in 1991. The sentencing Judge erred in having regard to the standard non-parole period. 43I have already indicated that the Crown conceded this ground was made out. The standard non-parole periods were first introduced by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 , the relevant provisions of which commenced on 1 February 2003. By the terms of s 45 of the Second Schedule to that Act, they do not apply to offences committed before the commencement of those provisions.

Ground 4 Her Honour erred in finding that it was inappropriate to assess the moral culpability of the second count (sic) by having regard to the sexual abuse that the Applicant himself had suffered. 44What her Honour said relevant to this ground was:- It may well have been that this offender was himself a victim and that impacted upon his behaviour towards his sister. One will never really know. However, the assaults were serious and they were not isolated. In relation to [RB], he was on notice that if he continued to behave in that way the matter would be brought to the attention of his parents. He must have known what he was doing was wrong. Whilst the fact that he himself is said to have been a victim of abuse at the hands of a priest, and it is a factor which can be taken into account when assessing his moral culpability, I find it appropriate to do so with respect to [RB] but it is not a factor to be taken into account with regard to [JB] for the reasons I have already alluded to, namely he was on notice, if not by his parents then certainly by [RB], that what he was doing was wrong and she would report his behaviour if he touched her again. He simply chose another family member to then assault. 45In any consideration of the ground it is important to be conscious of when events are said to have occurred. It appears from the summary of the evidence set out above that events occurred at the following times:- 1982 Applicant began to interfere with RB. 1983-85 Applicant abused by priest. 1987-88 Time of events the subject of first count. 1988 Applicant ceased to interfere with RB after warning. 1989-90 Applicant began to interfere with JB. 1991 Time of events the subject of second count. 1992 Second confrontation by RB and by parents.

46RB's first warning to the Applicant and his cessation thereafter of offending towards her makes it clear that from then onwards he knew that his actions were wrong. The psychologist Mr Warren drew a distinction between the Applicant's earlier and later offending and her Honour was well justified in taking the approach apparent in the passage quoted. This ground fails.

Ground 5 Her Honour erred in failing to regard the delay as a matter of mitigation. 47Her Honour's remarks on this topic were:- There has been a delay in the reporting of these offences to the authorities and the matter ultimately coming before the Court. However, the offender was aware that his sister had raised the matter with his family regarding his offending behaviour. Clearly he knew it would only be a matter of time before they went to police. The delay has afforded him an opportunity to seek counselling and to demonstrate a commitment to rehabilitation. It has not been demonstrated that the delay has otherwise impacted upon him significantly to such a degree that would entitle him to leniency. Certainly, once the matters came to be reported to the authorities there has been little or no further delay. 48Following the events listed in my consideration of the previous ground the following occurred:- 1993-94 The Applicant's abuse of JB ceased. 1996 The Applicant married at about this time. 2006 JB reported the abuse to her brother and mother. The Applicant was confronted by both and admitted the touching of JB. June 2006 The Applicant first consulted Mr Warren observing that his conduct had been reported to DOCS. 2006-07 The Applicant continued to consult with Mr Warren. June 2007 RB and JB made statements to police. Oct 2007 The Applicant attended on police and declined to be interviewed. June 2008 The Applicant was arrested.

49Previous decisions make it clear that while delay may justify a significant measure of leniency to an offender, very much depends on the circumstances - see e.g. R v Todd (1982) 2 NSWLR 517 at 519; R v Thomson (Unreported, NSWCCA, 18 June 1996); R v Kay [2004] NSWCCA 130; R v ECG [2005] NSWCCA 392. 50The circumstances here are not such that blame for anything more than 2 years' - the period between when the matter was reported to DOCS and the Applicant's arrest - delay should be laid at the feet of the authorities and the delay from mid 2006 enabled the Applicant to gain the benefit he did from seeing Mr Warren. Of course, it must not be forgotten that the Applicant seems to have ceased offending in 1993 on his own account. There can be no criticism of RB, JB or their mother for not reporting matters earlier but it should be recognised that the impact of the charges on the Applicant is likely to have been significantly greater in 2008 than it would have been had they been brought, say, before the Applicant married and had his own children. 51There was nothing to suggest that the delay in reporting the matters to the authorities was due to conduct of the Applicant, e.g. threats to the complainants, and in my view the Applicant was entitled to have some weight given in his favour to the consequences of the delay that had occurred. Accordingly her Honour erred in the respect the subject of this ground.

Grounds 2 and 3 52Before turning to these grounds in detail, it is appropriate to recognize that, in addition to those errors so far referred to, her Honour made other errors. One was in her treatment of the Victim Impact Statements. In this connection, her Honour said:- From the victim impact statement it is clear her childhood was destroyed by the actions of this offender. Her schooling was adversely affected. Her relationship with her parents and siblings have been adversely affected. It has made her role as a mother and wife so much more difficult. She has attended counselling. I find on the evidence before me that she suffers substantial ongoing emotional harm. 53In R v Bakewell (unreported, NSWCCA, 27 June 1996) and other cases this Court has pointed out the difficulties that arise when a Victim Impact Statement asserts consequences to a victim arising from offending other than that the subject of a particular offence in respect of which a sentence is to be imposed. RB's statement purported to set out what was said to be the consequences of the totality of offending by the Applicant to its author. Given what RB asserted to be the extent of the Applicant's offending, that was perhaps inevitable and it not possible to separate out the impact of any particular occurrence. But be that as it may, it was only the impact of the offences charged that the judge was entitled to take into account. The remarks that I have quoted thus demonstrate error. 54Her Honour made no express reference to the Victim Impact Statement of JB which suffered from the same difficulty as did that of RB. However, given the similarity in offending, the similarity in what was said by both complainants to be the effect of the Applicant's conduct, and her Honour's remarks as to the Applicant's conduct and sexual offences generally, it seems to me inevitable that the error was repeated, sub silentio, in JB's case. 55Another error related to the principle that, given the extent of the time between his offending and sentence, the Applicant was entitled to be sentenced in accordance with sentencing standards current at the time of his offending - R v MJR (2002) NSWLR 368; 130 A Crim R 481; AJB v R [2007] NSWCCA 51; 169 A Crim R 32 at [39]. 56Her Honour recognized this principle although having done so and adverted to some earlier cases from the period 1989 to 1994, she went on inexplicably to remark:- Thankfully, the view of the Court of Criminal Appeal and the legislature has changed. By 1995 there was a significant shift in the penalties to be imposed and there has been further increases in the penalties in more recent times. ... The Court of Criminal Appeal has stated ... that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual assaults by adults. 57The tone of these remarks is such that, despite her Honour's recognition of the principle, it is impossible to conclude otherwise than that her Honour allowed herself to be influenced by this shift in penalties for which she was thankful. Such an approach was erroneous.

Ground 3 (a) Her Honour imposed sentences which were entirely cumulative. Her Honour erred in failing to impose sentences which were partially concurrent. 58Although during the course of her remarks English DCJ observed that while the charge involving RB was a representative count, the Applicant was not being sentenced for a range of offences over many years, she then went on to say:- There will be an accumulation of sentence to reflect the seriousness of the offences committed against two victims over a very lengthy period of time. 59Given the fact of two victims and the difference in times of the two offences, her Honour was entitled to take the view that, as a matter of principle and in light of the length of the sentences she was imposing, adequate punishment of the Applicant required that the two sentences should be cumulative. In this connection, the Applicant's history of offending precluded any approach that the charges were but a reflection of isolated occasions. However the passage just quoted demonstrates that her Honour's decision to make the sentences cumulative was positively influenced by offences committed by the Applicant that were not charged. This she was not entitled to do - see e.g. R v ED (unreported, NSWCCA, 22 November, 1996); Giles v DPP [2009] NSWCCA 308; 198 A Crim R 395 at [85], [102-104]. 60Her Honour's decision thus being invalidated by the influence of extraneous considerations, it falls to this Court to approach the topic of accumulation de novo. It is convenient to do so in the context of the last ground of appeal.

Ground 2 The sentence imposed on count 1 was manifestly excessive. 61A convenient starting point in a consideration of this ground is that, despite a statement in the Crown's Statement of Facts that the Applicant was 16, 17 or 18 at the time of the offence against RB - a statement borne out by other evidence - English DCJ said that he was 17 or 18 at the time. Clearly, this finding was erroneous. He may have been 16. As having a higher age would tend to aggravate the Applicant's criminality the onus of proving that fact lay on the Crown. It did not fulfil that onus and accordingly, subject to one possible qualification, sentencing for the first offence must be approached on the basis that the Applicant was only 16 at the time of this offence. 62The qualification is that if the Applicant was 16, RB was 10 and as a general rule, the younger a sexual assault victim, the more seriously is an offence regarded. Thus it is not simply a case of looking at what inference within those available as to the Applicant's age is most favourable to him but what inference as to both his and RB's ages is. 63There was no evidence as to the maturity of RB at ages 10, 11 or 12 and in these circumstances and given the nature of the offence, it seems to me that the inference most favourable to the Applicant is that he was 16. At that age the Applicant was in law a "juvenile" or "young person" and, although liable to be dealt with at law, was entitled to have taken into account the considerations that apply to such persons. Accordingly, again, the sentencing of the Applicant proceeded on an erroneous basis. 64I have referred above to the principle that the Applicant was entitled to be sentenced in accordance with sentencing standards current at the time of his offending - R v MJR [2002] NSWCCA 129. One aspect of that was that during 1987 and 1988 the Probation and Parole Act 1983 was in force. Under that Act the usual proportion between non-parole periods and the total term was much less than it is today under the Crimes (Sentencing Procedure) Act 1999 . The non-parole period was commonly between one-third and one half of the total sentence - Dousha v R [2008] NSWCCA 263 at 35; AJB v R [2007] NSWCCA 51; 169 A Crim R 32 at [39]. 65In light of that circumstance, the 1 year fixed term imposed by English DCJ for the first offence corresponds, under the earlier sentencing regime with a total term of 2 to 3 years. Given the nature of the offence, that the Applicant may have been but 16, and the statutory maximum of 4 years, such a sentence, even adopting the lower figure, is manifestly excessive.

Ground 3(b) The overall sentence was manifestly excessive. 66As has been said, the sentence imposed on the second count was imprisonment for 3 years 4 months and 24 days, including a non-parole period of 1 year. It may be inferred that the unusual length of the full term of this sentence was the result of her Honour reducing a 4 year term by the 15% she indicated should be allowed for the Applicant's plea. There was, of course, no need for her Honour to descend to the degree of precision she did although doing so was not itself erroneous. 67However, I have said enough to indicate that her Honour's decision as to this term was affected by errors in her approach to the Victim Impact Statements, delay, and regard to the increased level of sentencing that has occurred since 1991. It is accordingly unnecessary to consider whether the sentence was manifestly excessive. Rather does the question become whether, in the terms of s 6(3) of the Criminal Appeal Act 1912 , "some other sentence ... is warranted in law and should have been passed". 68Although as I have said, the Applicant was entitled to be sentenced in accordance with the sentencing standards applicable at the time of his offending, in the case of the second offence, 1991, it is not easy to determine what those standards were. I have no difficulty in accepting that they were more lenient than at present. This has been recognised in Featherstone v R [2008] NSWCCA 71 at [45]; McGrath v R [2010] NSWCCA 48 at [62]; R v RWB [2010] NSWCCA 147 at [176] and accords with my own recollection of events. However, such recognition provides no indication of what the standards were. 69In consequence of the Court pointing out to counsel during the hearing of the appeal that little or nothing had been placed before the Court to indicate with any degree of reliability the standards current at the time of the Applicant's offences, supplementary material was later received. The Crown provided references and a summary of some 18 cases decided under s 61M(2) and of some 10 cases decided under s 61E(1) of the Crimes Act 1900 . Counsel for the Applicant said he could find no more though he did refer the Court to some Judicial Commission statistics. Although I have found a few of the cases of assistance, given the range of conduct and circumstances covered by the cases to which the Court was referred they provide no useful indication of general sentencing standards at the time of the Applicant's offending. Neither do the statistics, which cover cases decided only after mid 2002. 70I was however fortunate to have a deal of information provided to me by Ms Pierrette Mizzi of the Judicial Commission. That information included two publications in the Commission's Monograph Series, number 15, "Child Sexual Assault" published in 1997, and number 25, "Sentencing Offenders Convicted of Child Sexual Assault" published in 2004, and summaries of some 47 cases decided in this Court prior to 1 January 1999 involving breaches of s 61E and s 61M(2) together with the reports of those cases. 71The 1997 document recorded the results of a study of child sexual assault cases finalised in the District Court in 1994. Among the information contained in it was (at p18 and 50):- Where the principal proven offence was masturbation of the victim or offender, 39% of offenders received a full time custodial sentence; Where the principal proven offence was touching with the hands or penis, 30% of offenders receiving a full time custodial sentence; 25% of offenders under s 61E(1) were sentenced to full time custodial sentences, and the median full term was 23 months; 25% of offenders under s 61E(1A) were sentenced to full time custodial sentences, and the median full term was 30 months; 39% of offenders under s 61M(1) were sentenced to full time custodial sentences, and the median full term was 24 months; 39% of offenders under s 61M(2) were sentenced to full time custodial sentences, and the median full term was 36 months. 72The data in the second study was based on District Court sentencing statistics for the calendar years 2000-2002. Among the information contained in it was (at pages 29, 42, 51):- 18.2% of offenders under s 61E(1) were sentenced to full time custody and the median term was 42 months; 50% of offenders under s 61E(1A) were sentenced to full time custody and the median term was 37 months; 41% of offenders under s 61M(1) were sentenced to full time custody and the median term was 20 months; 57.1% of offenders against s 61M(2) were sentenced to full time custody and the median term was 39 months; The median sentence for those who were sentenced to full time custody for indecent assault was 30 months. 73A comparison of this information suggests some hardening of sentences although the change in pattern is by no means dramatic. In any event, both documents deal with years later than the Applicant's offending. 74Because of the statements in a number of cases as to the difficulty of determining what the sentencing regime has been in the past, I have annexed to these reasons a copy of the summary of pre-1999 cases provided to me and which obviously reflect a great deal of work the value of which should not be lost. That summary also suggests to me a lower sentencing regime than presently exists although because most of the cases referred to involved either persons in authority or sexual intercourse or both, and the charges of sexual assault tended to be overshadowed by these other matters and considerations of totality, I have not been able to derive from the summary or the cases any sentencing pattern for offending of the nature of that committed by the Applicant. 75In these circumstances, the approach to be adopted is the normal sentencing approach having regard to the statutory provisions relevant to the particular time - see R v Moon [2000] NSWCCA 534; 117 A Crim R 497 at [70] - [71]; R v MJR [2002] NSWCCCA 129; 54 NSWLR 368 at [107]. That approach allows for such assistance as may be obtained from the decisions of other judges. 76In the course of her remarks English DCJ referred to a number of cases from around the time of the Applicant's offending including Dalessandra (in 1991), Blacklock (in 1992), DCM (in 1993) and Baxter (in 1994). Others are referred to in Baxter and by Simpson J in R v RWB [2010] NSWCCA 147 but the difference in circumstances has resulted in me finding none of these particularly useful with the exception of Baxter where it was said that whilst ordinarily in the case of indecent assault a custodial sentence would be appropriate such a sentence was neither necessarily required or inevitable in every case. That case involved vaginal touching of the offender's daughter, charged under s 61E(2A) as acts of indecency rather than assault, and this Court refused to interfere with a non-custodial sentence. 77As I have said, counsel for the Applicant referred the Court to the Judicial Commission statistics. Covering only the period since mid 2002, and having regard to the wide variation that can occur in the nature of offences falling within the statutory provisions under which the Applicant was charged, I have found the statistics of no assistance for present purposes. 78I have however derived some assistance from four cases that may usefully be referred to. In Dousha v R [2008] NSWCCA 263 at [50], it is observed that the Crown conceded a sentence of 2 years and 6 months including a non-parole period of 18 months was at the high end of an available range for an offender who, in 1986 repeatedly touched his victim on and around her vagina and who was charged under s 61E(1A). The offender was in his late 20's and had, in a planned and deliberate course of continuing criminal conduct, assumed the responsibility of periodically looking after two children. The charge carried a maximum penalty of 6 years and the Court refused to reduce the sentence imposed. 79In AJB v R [2007] NSWCCA 351; 169 A Crim R 32, one of the charges of indecent assault against the offender was of fondling the vagina of his step-daughter under her panties while in the family vehicle. The maximum penalty was 6 years imprisonment. The sentence imposed for this offence under s 61E(1) was imprisonment for 18 months including a non-parole period of 9 months. 80In the course of his reasons, Howie J, with whom the other members of the Court agreed, remarked that the offender had reformed during the lengthy period between offending and matters coming to light and quoted, at [30] what he had said in R v Moon (2000) 117 A Crim R 497 at [81] In a case such as this where there has been such a lengthy delay between offence and sentence and where the offender is rehabilitated, it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct. Although general deterrence is important it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the court. 81Later, his Honour observed that:- General deterrence was not a significant matter in the Applicant's case because in light of the very lengthy period that had transpired between the offences and the passing of sentence and his reform it was not appropriate to make an example of him to deter others from similar conduct. 82Both of these remarks have an obvious relevance here although it also appropriate to note what his Honour, with the concurrence of Grove and RA Hulme J, said in PH v R [2009] NSWCCA 161 at [32]:- 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. 83In R v EGC [2005] NSWCCA 392 the offender was sentenced in respect of a number of offences committed between 1986 and 1988. Only one is of present relevance. The offender was charged under s 61E (1A) with the indecent assault of a step-son aged between 4 and 6, the assault taking the form of placing a hand down the front to the boy's pants, grabbing his penis and continuing this activity despite protest. Against a statutory maximum of 6 years imprisonment the offender was sentenced to a fixed term of 2 years and this Court said that sentence was not excessive. Sentencing occurred in 2004 and the offender was regarded as having demonstrated rehabilitation. There was no material put before the sentencing judge to demonstrate the sentencing pattern in 1986 to 1988. 84In R v Ware (unreported, NSWCCA, 9 July 1997) the offender was aged 17 at the time of offending and was the uncle of the victim who was aged 9 or 10. He pleaded guilty to one charge involving digital penetration under s 61D(1), two of indecent assault under s 61E(1) and one of committing an act of indecency under s 61E(2). When the victim's mother discovered his activities, he himself reported his conduct to police but it was only some 13 years later when he did this again that he was charged. In the interim he had established a family of his own, acquired an occupation and undergone substantial rehabilitation. There was evidence that his offending had had a substantial adverse impact on the victim. This Court allowed the offender's appeal and sentenced him to concurrent terms of 6 months on each offence. 85Other things being equal, indecent assaults by those such as parents who are entrusted with or undertake the care of children are significantly more heinous than those by others. Certainly the Applicant here abused the position he held as a much older brother of JB but his relationship did not involve the same obligations as those of a parent. While the offence against JB involved touching of the genitalia rather than, say, breasts, and the Applicant's position and age no doubt quietened any tendency of JB to resist, the evidence does not suggest the touching was prolonged or accompanied by any threat or force. JB's young age tended in some respects to aggravate the offence but in nowhere near the same degree as it would if the actions had involved penetration. I am also not persuaded that a 5 or 6 year old would have the same sense of violation as would a child of, say 9, or 15. Although I do not suggest the circumstances are on all fours, in that connection one has only to reflect on the gay abandon with which young children are prepared to run around naked and those at, or approaching puberty, guard their personal privacy with zeal. 86The factors mentioned in the immediately preceding paragraph lead me to the conclusion that, putting aside the circumstances of the Applicant, the offence against JB was not high on the scale of offences falling within s 61M(2). On the other hand, the Applicant had previously had brought home to him that such conduct was wrong. He was also old enough that youth provided no excuse. The combination of circumstances leads me to the view that her Honour's starting point of 4 years, compared with the 10 years maximum for this offence, was wrong and that "some other sentence ... is warranted in law and should have been passed", albeit the sentence should still have included full time custody. 87Since writing the above, I have had the opportunity of reading the remarks of Beazley JA. While I have no difficulty in accepting the propositions that statutory provisions must be afforded their proper weight and , as was said by Simpson J, with the concurrence of Adams and Howie JJ in R v AJP 92004) 150 A Crim R 575 at [35] " generally, the younger the victim, the more serious might be the offence", general propositions in previous cases must not be allowed to obscure the facts in an individual case. As was said as long ago as Quinn v Leathem (1901) AC 495 at 506:- ... every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. 88While considering the sentence for the second offence, there is one other matter to which I should refer. Her Honour made a finding of special circumstances. As expressed, her reasons for doing so were as follows:- This is the first occasion on which he will find himself in custody. He will need a lengthier than normal period of supervised parole to assist him with his integration back into society upon his release. He will no doubt spend time on protection due to the nature of the offences committed by him and that is something which will make his time in custody more onerous. 89Although the matter was not argued, there was no evidence to justify the statement in the second sentence just quoted and the statement in the third provides no basis for her Honour's finding. The practice current when the Probation and Parole Act was in force of relatively lengthy periods when an offender was eligible for parole did not apply to the second offence which was committed after the Sentencing Act 1989 came into force. In short, there was no basis for her Honour to impose a sentence the effect of which was that the Applicant would spend 2 years in custody (for two offences) and have a balance of sentence of a little less than 2 years and 5 months.

Re-sentence 90During the hearing of the appeal an affidavit was read on the usual basis viz. to be taken into account if the Court reached the stage of re-sentencing the Applicant. It shows that he seems to have applied himself to such opportunities as prison afforded him. 91In the case of the second offence, an appropriate sentence is one where there is a 12 month non-parole period and a balance of term of a further 12 months. In accordance with s 50 of the Crimes (Sentencing Procedure) Act , such a sentence would carry the consequence that the release of the Applicant at the end of the non-parole period would be directed. 92It was submitted on behalf of the Applicant that a suspended sentence would be appropriate for the s 61E offence. However, given my conclusion that that a full time custodial sentence should be imposed for the second offence, s 12(2) of the Crimes (Sentencing Procedure) Act precludes such a course. Given that the sentence in respect of the second offence should include a period when the Applicant would be eligible for parole, and the evidence indicates that there is little or no risk of him re-offending, a good behaviour bond is also not a sensible result. In the circumstances I am satisfied that no penalty other than imprisonment is appropriate for the first offence. However, it should be very substantially less than the 12 months imposed by English DCJ. I formed the view that the sentence on this count be a fixed term of imprisonment for 4 months on which the sentence for the second offence should be largely accumulated. 93In the result the view I formed the view that the appropriate orders were as made on 4 March last. It is only necessary now to publish these reasons. 94HARRISON J: I have had the benefit of reading in draft the reasons of both Beazley JA and RS Hulme J. I agree with her Honour's careful and helpful analysis of the issues and the principles that she had identified. I also agree that each offence of which the Applicant was convicted was a serious offence. However, having regard in particular to the likelihood of the Applicant re-offending, his good prospects of rehabilitation and the remorse shown by him, all in the context of the sentencing standards applying at the time that the offences were committed, I agree that the appropriate orders were those made on 4 March 2011. Table of Criminal Appeal Cases pre-01.01.1999 re breaches of s.61E and 61M(2)

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