R v ABS [2005] NSWCCA 255 | Case summary

WEDNESDAY 20 JULY 2005 REGINA v ABS Judgment 1 BUDDIN J: This is an appeal brought by the Crown against an order made in the District Court on 13 April 2005, adjourning until 1 April 2006 the sentencing proceedings against the respondent pursuant to s 11(1) of the Crimes (Sentencing Procedure) Act 1999. Such an order is amenable to a Crown appeal by reason of the way in which the term "sentence" is defined in s 2 of the Criminal Appeal Act 1912. 2 The respondent, who is now aged 38, entered pleas of guilty in the Local Court to a number of charges of aggravated sexual intercourse without consent which were committed against his step-daughter. The offending conduct spanned the period between 1 January 2003 and 2 June 2004 at a time when the victim was aged between 12 and 14 years, she having been born on 18 January 1990. 3 The respondent adhered to his pleas of guilty when he appeared for sentence in the District Court. In all he stood for sentence in respect of a total of six charges of aggravated sexual intercourse without consent. He also requested that four additional charges of a similar nature, which appeared on a Form 1 document, be taken into account. Each offence attracts a maximum penalty, pursuant to s 61J(1) of the Crimes Act 1900, of 20 years imprisonment. Subsection (2) defines the "circumstances of aggravation" which the section contemplates. In the present case there were two such matters, namely that the victim was under the age of 16 at the time of the offences and also that she was under the authority of the respondent at the time. The aggravating factor alleged in the charges was the victim's age but the court is also entitled to have regard to the last mentioned additional matter of aggravation in sentencing the respondent. 4 All of the offences occurred within the family home. It is unnecessary to recite the details of the various offences. Suffice it to say that the respondent engaged in conduct which involved various forms of sexual assault upon the victim. All of the offences but one consisted of digital/vaginal penetration or penile/anal penetration. The remaining offence was constituted by an act of cunnilingus. During the course of some of these incidents the respondent also fondled the victim's breasts. 5 The victim told police that the respondent had referred to the activities as "playing". She said that on one occasion at least he had offered her "a couple of dollars" as an incentive for her to participate in it. She also said that the respondent ensured that her mother, who was the respondent's de facto partner, and her younger siblings were not around at the time when the offences took place. 6 The respondent had been living with the victim's mother for about 13 years at the time when the offending conduct commenced. There are three children of that relationship, all of whom are younger than the victim. The victim was only 2 years of age when her mother and the respondent commenced to live together. 7 It was to the respondent's credit that he had no prior convictions of any kind. The present matters aside, therefore, he is otherwise to be regarded as a person of good character. He made full admissions to the police which went beyond the scope of the complaints made against him. He then entered pleas of guilty at the first available opportunity. Apart from having thus "facilitated the course of justice", his stance obviated the need for the victim to give evidence. There was evidence that he was genuinely remorseful for his actions, although the author of the pre-sentence report observed that the respondent lacked insight into the possible consequences of his actions upon the victim. Nor, she noted, was the respondent able to explain his actions. 8 The respondent informed a psychiatrist, who prepared a report on his behalf, that from the age of about 4 he had been the victim of sexual abuse at the hands of a male who lived in his neighbourhood. The evidence indicates that the respondent has at times suffered from bouts of depression. His mother reported that he had twice attempted to take his life. She said however that life had improved for him once he met his de facto wife. Nevertheless it is not possible upon the material which is before the court to determine what, if any, bearing those matters may have had upon the respondent's offending conduct. 9 The respondent has always, it seems, been gainfully employed. He grew up in a positive and supportive family environment. Indeed he has been living with family members since he was released on bail. 10 A letter, signed by both the victim and her mother, was placed before the sentencing judge. It was addressed to the magistrate from whom the respondent sought bail. The authors of the letter indicated that they would support the respondent being released on bail in order that he could attend a community based therapeutic program for sex offenders, known as the Cedar House program. The respondent was indeed granted bail by the magistrate after having spent 1 month and 11 days in custody. One of the conditions of bail was that he was to apply for, and if accepted, enter the Cedar House program. The authors of the letter said that they were also willing to participate in the program themselves. 11 A further letter from the victim and her mother was tendered in evidence before the sentencing judge. In that subsequent letter the authors noted that the respondent had been assisting the family financially since his release from custody. The authors also observed that "[w]e both feel that [the respondent] has served enough time in prison for this crime, but we feel that he needs a court approved program to help him through his illness". 12 A report prepared by a clinical psychologist, attached to the Forensic Psychology Services of the Sex Offender Programmes within the Department of Corrective Services, was also in evidence. The author of that report, Ms Sutton, observed that "the salient aspect of [the respondent's] presentation was behaviour indicative of a clinical depression". Ms Sutton informed the Court that the respondent had been assessed as suitable to participate in the community based treatment program provided by Forensic Psychology Services. That program apparently lasts for 12 months. Ms Sutton said that the respondent had indicated a willingness to participate in the program. She said however that he would "require on-going psychiatric care and medication to reduce his level of depression sufficiently to allow him to engage in therapy". On the other hand, Ms Sutton also noted that were the respondent to be given a custodial sentence, he should be assessed to determine his eligibility for participation in one of the sex offender programs currently available at Long Bay gaol. The various reports which were in evidence indicated that there was a low risk that the respondent would re-offend. 13 When the matter first came before the sentencing judge, his Honour made reference to the Pre-Trial Diversion of Offenders Act 1985 (NSW) and expressed the view that the respondent appeared to be a suitable candidate for inclusion in the scheme contemplated by it. Section 3A of the Act provides that the Act applies "to a person who is charged with a child sexual assault offence committed with or upon the person's child or the child of the person's spouse or de facto partner". 14 Section 2A of the Act is in the following terms: The purpose of this Act is to provide for the protection of children who have been victims of sexual assault by a parent or a parent's spouse or de facto partner. The Act provides for the establishment of a program administered by the Department of Health. In the implementation of the Act, it is intended that the interests of a child victim are to prevail over those of a person pleading guilty to a charge of sexual assault in relation to the child. 15 The Act makes provision for the prosecutor in the proceedings to determine, in accordance with guidelines which are prescribed, whether the person in question is to be referred for assessment as to his or her suitability for participation in the program. The prosecutor then notifies the Magistrate as to whether the person is to be referred for assessment. If the person is to be referred, then proceedings are adjourned pending that assessment. Section 14 of the Act sets out the manner in which the assessment is to be made. 16 Section 11(2) provides that if there is no place available in the program for the person then the prosecutor is to inform the Magistrate that the person is not to be referred for assessment. If that occurs, the Act then ceases to apply. The Court was informed that at the relevant time there were in fact no places available in the only program which is available under the Act, namely at Cedar House. It is therefore common ground that the Act had ceased to apply at that stage. Indeed, his Honour acknowledged that fact during the course of discussion with counsel about the matter. Accordingly, thereafter the matter could only proceed in what may be regarded as the conventional fashion. 17 It is to be observed that there is no material before the Court to indicate whether the prosecutor had in any event made a determination as to whether the respondent should be referred for assessment. Nor, assuming that such a determination had been made, is there any material to indicate whether or not an assessment had been made as to the respondent's suitability for participation in the program. A person who is accepted into the program and who is required to appear in the District or Supreme Court must give an undertaking pursuant to s 23 of the Act to participate or continue to participate in the program as required by the program's Director. If the person gives that undertaking then, subject to certain exceptions, the Court proceeds to convict the person pursuant to s 24 of the Act, but it "is not to sentence or otherwise deal with the person". 18 In view of the fact that the Act did not apply to the respondent, and in the absence of the material to which I earlier referred, it is undesirable to express a concluded view as to the appropriateness of utilising the provisions of the Act in a case such as the present kind. However, reconciling the outcome provided for in s 24 of the Act with the way in which the courts, particularly in recent times, have approached the sentencing of offenders who have committed offences as serious as those which the respondent committed, may be thought to be extremely difficult, if not impossible. 19 In any event the sentence proceedings were adjourned for a few weeks to enable enquiries to be made as to whether there was a place available to the respondent to undertake the program to which Ms Sutton had referred. When the matter resumed, the sentencing judge was informed that if the respondent were to be given a non-custodial sentence, then he would be placed on a waiting list to join the next available group. Ms Sutton informed his Honour that the program was not specifically covered by the Pre-Trial Diversion of Offenders Act, but that participation in the program could however be required by court order or by direction of a probation and parole officer. 20 His Honour proceeded to make the order to which I earlier referred in order, so it was said, that the respondent's rehabilitation could be further assessed. Bail was granted upon conditions which included a requirement that the respondent was to make all reasonable efforts to apply for admission to the program recommended by Ms Sutton, and if accepted into it, to comply with the supervision and guidance of the Department of Corrective Services. 21 The sentencing judge did not provide reasons for making the order which he did. Nor did the parties have a full opportunity to make detailed submissions about the disposition of the matter. Given the nature of the order which his Honour made, it was incumbent upon him to provide at least some explanation as to why he embarked upon the most unusual course which he adopted: see R v Smith (1993) 69 A Crim R 47. 22 It is possible nonetheless to glean some insight into his Honour's thinking from the following passages which appear in the transcript of the proceedings: His Honour: No, but I must say that these offences are serious, normally I would have thought there was no alternative to full time custody, however, if he does have the benefit of this program, it seems to me that there may be an alternative after that to full time custody and I think given that full time custody must be the sentence of last resort he should have every opportunity to avoid that. Glancey: I take your Honour's point. Your Honour I think the Crown position would be that even upon completing a s 11 there's a real likelihood that a custodial sentence would be necessary to reflect the criminality. His Honour: I think a custodial sentence of some sort probably would be necessary, but it might not be full time custody . I think general deterrence would require a custodial - this is not a situation where a s 9 Bond would be appropriate. But it seems to me that if ABS is given the opportunity to demonstrate whether or not he is going to benefit from this program, it would certainly be highly relevant to his prospects of rehabilitation and it is also highly relevant to the protection of the community and I think for that reason that's what I'm going to do. … His Honour: It is a difficult situation. I mean it seems to me that I'm obliged to give effect to the policy of the legislation, although the legislation is set out with one specific program in mind. From what I have read and what I understand, this program has very similar methods and objectives to the Cedar Cottage Program and I think ABS, both the community and ABS would be better served by him given the opportunity to participate. … His Honour: I mean that is the whole purpose of this. I mean it's a serious matter and I don't want to appear to be treating it with anything less than proper seriousness, but I think that there is a policy stated in the legislation that offenders of this type ought to be given the opportunity to undertake some sort of program of this sort and just because there is not a place available in Cedar Cottage it seems to me that ABS should have the opportunity to undertake the other program. (emphasis added) 23 The Crown submits that the sentencing judge erred in making the order that the proceedings should be adjourned pursuant to s 11(1) of the Crimes (Sentencing Procedure) Act 1999. It submits that nothing other than substantial sentences entailing full-time custody for each of the offences could be countenanced in the circumstances of the present case. It makes that submission notwithstanding the favourable subjective features of the respondent's case for which, it concedes, due allowance must be made. It also submitted that little was to be achieved by ordering a lengthy delay in the finalisation of the sentencing proceedings given the material that was already available to the sentencing judge: see R v Alamedinne [2005] NSWCCA 68. In essence, the Crown submitted that the effect of his Honour's order was to simply delay the inevitable for no good purpose. 24 Indeed the respondent seems to have realistically recognised as much. It appears that the matter was back before the sentencing judge in the last few weeks in order to ascertain if the respondent had entered the community treatment program. Ms Sutton reported that the respondent had commenced the program on 31 May 2005. She reported that although it was early days he had thus far "engaged well with the treatment process". However she also observed that the respondent "expressed some despondency about continuing to participate in treatment. He stated his belief that he would be sentenced to gaol and that it would be best if he did not invest any further in this group, given that he would have to leave it. I pointed out the distortions implicit in his assertions and encouraged him to continue to participate in treatment while he has the opportunity to do so." His Honour also indicated that he thought that the respondent should continue on the program. He went on to observe that "his best chance of staying out of gaol is to do that". 25 The Crown pointed to a number of features of the case which it said demonstrated the objective gravity of the various offences. First, as I have said, each of the offences attracts a maximum penalty of 20 years imprisonment. Secondly, most of the offences were committed after 1 February 2003 and accordingly a standard non-parole period of 10 years applies in respect of those offences. Thirdly, the repeated nature of the offences had to be taken into account. Moreover, this fact deprived the respondent of any claim for leniency which may have been available to him had his offending only involved an isolated incident: see R v Holyoak (1995) 82 A Crim R 502. Each of the matters upon the Form 1 also carried a maximum penalty of 20 years imprisonment. The existence of those matters needed to be taken into account in the manner indicated in the authorities: Attorney-General's Application under S 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. Fourthly, the offences continued over an extended period of time, during which the respondent engaged in various forms of sexual misconduct each of which constituted a serious offence in its own right. Fifthly, the respondent's conduct entailed the abuse of a position of trust or authority which he held in relation to the victim: see R v BJW (2000) 112 A Crim R 1. Sixthly, the victim was at a vulnerable age at the time of the offences. Finally, the respondent instigated the offences and engineered the circumstances in which they were committed: see generally R v CJP [2004] NSWCCA 188. On each occasion the respondent prevailed upon the victim to engage in the various acts of sexual exploitation at a time when her mother was out of the house. 26 Offences involving acts of significant sexual exploitation against children are almost without exception met with salutary penalties. Moreover, the legislature has in recent years provided for increased penalties in respect of many such offences. It is an area in which the need to protect children from exploitation and to deter others from acting in a similar fashion assume particular significance: see R v Fisher (1989) 40 A Crim R 442; R v Burchell (1987) 34 A Crim R 149 at 150-1. 27 Whilst dealing with the question of the relevant principles to be applied, it is necessary to refer briefly to one matter that may in someway have inappropriately influenced the sentencing judge's approach. It is in that context that the general principle that the views or indeed the wishes of the respondent's de facto partner and even of the victim herself can have little if any bearing upon the appropriate sentences to be imposed needs to be reiterated: see R v Palu [2002] 134 A Crim R 174 at para 37. 28 Section 11 makes provision for the making of an order for the purpose of enabling an assessment of an offender's capacity and prospects of rehabilitation to be made or indeed to allow an offender to demonstrate that rehabilitation has taken place. 29 The principles guiding the operation of the discretion to make a s 11 order were extensively reviewed in R v Trindall (2002) 133 A Crim R 119 by Smart AJ. His Honour concluded: The granting of a Griffiths remand is likely to arise for consideration in a relatively small number of cases. Generally, such a remand should not be granted unless there are good reasons for concluding that it is likely to assist the court in determining whether an offender should be sent to gaol or in fixing the length of the sentence or the non-parole period. (par 64) 30 In Palu (supra) Howie J, with whom Levine and Hidden JJ agreed, observed that: As Smart AJ identified, the discretion conferred upon a sentencing judge by s 11 can be a valuable sentencing tool when used in an appropriate case for the purpose of arriving at a sentence which is just both for the offender and for the community. But the section can only be utilized in a principled way and upon proper material placed before the court otherwise it becomes an instrument of injustice, either by raising false expectations in the mind of the offender as to the sentence which will ultimately be imposed upon him or by becoming the justification for the imposition of a sentence which fails to meet legitimate expectations of the community as to the punishment to be imposed upon the offender. The exercise of the power given under s 11 will inevitably result in delay in the finalisation of the prosecution of the offender. On many occasions, as in the present case, that delay will be substantial. Unless the further delaying of the sentencing of the offender is wholly justified in order to ensure that the sentencing discretion is properly exercised, there will be a miscarriage of justice. Time and again sentencing courts are asked to have regard to the delay in sentencing an offender as a matter of mitigation because of the adverse effects of delay upon the well-being of the offender and the disruption it causes to his or her everyday life. Delay unavoidably results in unfairness: unnecessary delay results in injustice. Steps have been taken throughout the criminal justice process to eliminate unnecessary delay wherever possible. Unless delay in the sentencing of the offender is essential in order to ensure a just result, the court has failed in its duty both to the offender and the community. (at paras 29-30) 31 In my view the Crown submission that the making of a s 11 order in the circumstances of this case was entirely inappropriate must be accepted. The sentencing judge appears to clearly suggest, in the passages to which I earlier referred, that some form of sentence other than full-time custody might well be available at the end of the remand period. In expressing that opinion his Honour, in my view, clearly fell into error. The serious objective criminality which the respondent displayed in committing the present offences required that significant full-time custodial sentences be imposed. Moreover, his Honour appears in making the order to have taken the view that the question of the respondent's rehabilitation assumed greater significance in the sentencing process than the circumstances properly warranted. Indeed it appears to have been his Honour's view that it was the decisive factor. Whilst rehabilitation was properly to be regarded as an important factor in the sentencing process, it is a matter which must nonetheless take its place alongside the other purposes of sentencing which are identified in s 3A of the Crimes (Sentencing Procedure) Act 1999. 32 I propose that the appeal be allowed and the order imposed in the District Court be quashed. I propose that the matter be remitted to the District Court to be relisted before the sentencing judge in order that the sentencing proceedings can be resolved as soon as is practicably possible. Given all the circumstances I am of the view that bail should be revoked. 33 BROWNIE AJA: I agree. 34 LATHAM J: I also agree. 35 BROWNIE AJA: The order of the Court will be as proposed by Buddin J. The respondent is to be taken into custody. **********

R v ABS

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