R v AJP

R v AJP - [2004] NSWCCA 434 - NSWCCA 2004 case summary — Zoe

[8]

facts 2 The offences were committed on 17 September 2003. The respondent was the uncle of the complainant (her mother's brother). The complainant was eight years of age. She and her 10 year old brother had been left for the day in the care of the respondent, who lived with his mother. The complainant and her brother engaged in some rowdy play, which caused the respondent to order the brother into a bedroom and the complainant into a rumpus room. He then forced the complainant to perform fellatio upon him until his previously flaccid penis became erect; ordered her to remove her clothes, and, with his penis exposed, sat her on his lap and moved her body so that his penis was rubbing against her vagina. The act of fellatio gave rise to the charge on the indictment; the act of moving her naked body against his penis constituted the offence of aggravated indecent assault taken into account. 3 The offences came to light about a week later, after the complainant told her brother what had happened, and the brother's behaviour provoked questions from their mother. 4 A victim impact statement dated 1 June 2004 and tendered in evidence provided considerable detail of the effect of the offences upon the complainant. She demonstrated significant behavioural changes. She lost self confidence, had difficulty concentrating, and her school results deteriorated. She experienced feelings of sadness, betrayal, anger, confusion and isolation. She had outbursts of anger towards men and boys. She felt an ongoing sense of shame, self blame and guilt. She herself reported that for some time after the assault she did not like herself very much and felt sick in the stomach and disgusted. She had some difficulty in sleeping, resumed a previously overcome bedwetting problem, frequently cried for no reason and felt very embarrassed. She sat in her room alone in the dark. The counsellor who assisted the complainant in the preparation of the victim impact statement recommended further counselling. 5 It is of some significance that the complainant's mother and her partner moved the family from the western Sydney suburb where they had lived to a country town. This appears to have provided the foundation for some improvement in the complainant's emotional condition.

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subjective features 6 A strong subjective case was advanced on behalf of the respondent. He was born on 13 February 1981 and was, therefore, 22 years of age at the time of the offences, 23 at sentencing. He had no prior criminal convictions. The evidence appears to have established that the offences were committed as an isolated incident, and not part of a continuing pattern, as is frequently the case in such matters. Certainly the sentencing judge accepted that that was the case. 7 The respondent lived with his mother but there were longstanding problems in the family relationships, most of which were not elucidated in the material provided. A pre-sentence report was generally positive, except for a reference to the respondent having suggested that, if the complainant had not misbehaved, she would not have been in the situation where the offences occurred. The author of the report expressed concern that this indicated a failure by the respondent to accept full responsibility for his actions. However, the author immediately added that the respondent stated that he was disgusted with his conduct and expressed empathy for the complainant and her family. 8 From at least October 2003 the respondent had regularly been consulting a psychologist, Mr Henkelman. On 13 May 2004 Mr Henkelman reported in strongly favourable terms on the respondent's progress towards psychological rehabilitation. He diagnosed post-traumatic stress disorder and recurrent major depression but considered that these were unrelated to the offences (he did not explore the foundation of either condition). Mr Henkelman referred, somewhat elliptically, to difficulties in the respondent's formative years, including in his relationship with his mother and other members of his family. It is quite plain that the respondent carries with him the after effects of some form of early emotional neglect, deprivation or abuse, none of which was fully identified. 9 Mr Henkelman was, however, extremely positive about the gains that had been made in the respondent's treatment. His mother has been supportive and has contributed to the therapy. Mr Henkelman believed that the respondent had a very low risk of re-offending.

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the finding that the offence was in the mid range of objective seriousness: 19 Senior counsel for the respondent answered this by challenging the finding that the offence did in fact fall within the mid range of objective seriousness of offences against s66A. The principal basis for the challenge was that, as his Honour expressly recognised, many, if not most, offences against s66A are committed in the context of a history of sexual abuse and of multiple and various offences committed against the same victim. An offence against s66A in the mid range of objective seriousness would be one that was committed as part of a pattern or history of such abuse. Having recognised that such a history is a typical feature of s66A offences, his Honour nevertheless considered that "not helpful" in determining what might constitute an offence in the mid range of objective seriousness. Senior counsel for the respondent contended that this indicated that his Honour regarded the absence of a history of abuse as irrelevant to the evaluation of the objective seriousness of the offence, and that this was erroneous. 20 Care must be taken, in accordance with Way ([101] - [102]) to avoid characterising a typical or common instance of the offence as necessarily one that falls within the mid range of objective seriousness. However, it is correct that the experience of the courts shows, as his Honour mentioned, that repetitive abuse is frequently associated with s66A offences. While a pattern of behaviour is not determinative of the evaluation, that a particular offence is an isolated instance is not irrelevant to that evaluation. I accept that his Honour treated it as irrelevant, and that that was an error. 21 Another criticism made of the reasoning process which led the sentencing judge to conclude that the offence was one of mid range gravity was that his Honour regarded as irrelevant the precise nature of the sexual intercourse. His Honour said: "I do not think it is appropriate to go into the relative seriousness of whether sexual intercourse takes place by way of oral sex, anal sex or vaginal sex. It seems to me that each of those ways of offending against a young person is equally as bad and to try and suggest that one type of intercourse is less deserving of condemnation than another is I think to really split hairs where it is inappropriate to do so." 22 Senior counsel for the respondent referred this Court to the decision of the High Court in Ibbs v The Queen (1987) 163 CLR 447. The Court wrote: "The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined." 23 In R v Davis [1999] NSWCCA 15 Wood CJ at CL wrote: "[66] In Ibbs v The Queen ... the High Court rejected the proposition that each kind of sexual penetration as defined in the section, there under consideration, was to be regarded as neither more nor less heinous than another. The Court said that such a proposition cannot be accepted. It appears to me that any other view would beggar common sense, and that penile/vaginal penetration of a child is significantly more serious than many of the other forms of conduct encompassed within s66A ..." 24 It might be true, as senior counsel suggested, that penile/vaginal intercourse would, in the circumstances, have amounted to a more serious offence. But does that avail the respondent? Let it be supposed that his Honour had not excluded as irrelevant the nature of the sexual activity in question. It is difficult to think that that of itself would have led him to the conclusion that the offence was of something less than mid range gravity. It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s66A (and defined in s61H). It is the facts and circumstances of each case, including the nature of the intercourse, that enables the proper evaluation of objective seriousness. While penile/vaginal penetration might be taken to be more serious than enforced fellatio, that does not mean that enforced fellatio necessarily falls somewhere below the mid point of objective seriousness. There are many instances of conduct that come within the definition of sexual intercourse that would be significantly less serious than enforced fellatio. Had his Honour considered the nature of the sexual intercourse as relevant, he must, in my view, have come to the view that enforced fellatio falls somewhere in the middle, or towards the upper end, of that scale. 25 Other appropriate areas of inquiry in the consideration of the objective seriousness of a s66A offence are, for example, how the offences took place, over what period of time, with what degree of force or coercion, the use of threats or pressure before or after the offence to ensure the victim's compliance with the demands made, and subsequent silence, and any immediately apparent effect on the victim. Although the sentencing judge was fully conversant with the facts of the offences, he has not explicitly considered these matters in the specific context of the evaluation of objective seriousness. 26 Here, the respondent was not alleged to have used threats or pressure to secure the complainant's compliance, nor to ensure her subsequent silence: there was little if any force or coercion - it seems the respondent relied upon his natural authority as a person in charge of the complainant and her compliance resulted from her acceptance of that authority. The respondent did, however, tell the complainant that she could extricate herself from the trouble she was in for her rowdy behaviour by complying with his demands; and he abused a position of both trust and authority (taking these matters into account does not contravene the principle in The Queen v De Simoni [1981] HCA 31; 147 CLR 383 because there is no aggravated form of the offence which would be constituted by either of those circumstances.) 27 I have come to the view that there was error in the approach taken by the sentencing judge to the evaluation of the objective seriousness of the offence. Error in the approach does not carry with it the necessary implication that the conclusion was erroneous; it means that this Court must make its own evaluation. Having regard to the matters to which I have referred in paras [25] and [26], I have come to the view that the respondent's challenge to the finding that the respondent's offence fell in the mid range has been made good. It should properly be seen as falling somewhere below the mid range of an offence against s66A. Of most significance in this conclusion is that this was an isolated incident. That is, of itself sufficient to warrant departure from the standard non-parole period. 28 That does not mean, as I have earlier pointed out, that the standard non-parole period is of no relevance, and I will return to this.

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(iv) protective custody 31 The final matter the Crown raised concerned the judge's reference to the likelihood that the respondent would serve his sentence in protective custody. He specifically noted that it was likely that this would involve some degree of deprivation of privileges. 32 It is no longer necessarily the case that offenders who serve sentences in protective custody are deprived of access to privileges; see Way, [176]; R v Totten [2003]NSWCCA 207; R v Durocher-Yvon [2003] NSWCCA 299; R v Mostyn [2004] NSWCCA 97. It will be a question of fact in each case whether that applies or not. I do not think it was, in this case, open to his Honour to make the assumption that he did, in the absence of concrete evidence. 33 It is plain from what I have said above that I am satisfied that a number of errors infected the sentencing process. Further, I am satisfied, particularly having regard to the standard non-parole period, and to the additional offence, that the sentence imposed was manifestly inadequate. It is necessary that this Court intervene and re-sentence. For this purpose the Court received additional material in the form of affidavits sworn by the respondent and by his solicitor. The Crown produced evidence in the form of a letter signed by Mr Glenn Ford, the Acting Deputy Governor of the Metropolitan Special Program Centre ("MSPC"), the facility in which the respondent is currently held. Mr Ford said that the respondent was initially subject to a protective custody direction but that this was revoked on his transfer to the MSPC which is a minimum security facility the function of which is to house sex offenders. At that time the respondent was employed in one of the prison's industries and had full access to education, counselling and other programmes and services. This was largely consistent with the affidavit sworn by the respondent. However, the respondent added that he had not seen a psychologist nor received any counselling since his incarceration. He spent about a month in a high security facility, on strict protection, which meant that he was held in his cell for at least 21 and sometimes up to 23 hours per day with no access to work or education. 34 His solicitor's affidavit speaks of unsuccessful attempts to obtain information about the respondent's future custody conditions in the event that the Crown appeal is successful and the respondent's sentence increased. The best information she was able to obtain was that a substantial increase in the respondent's sentence would result in reclassification, but there was no elaboration on the likely effect of that on his protective custody status. 35 I am satisfied that there are reasons for setting a non-parole period that is shorter than the standard non-parole period. The principal reason for this is that the offence itself is of lesser gravity than a mid range offence against s66A. I would also pursuant to s54B record the following as the factors that have led me to determine that a standard non-parole period less, and substantially so, than that stated in the Table should be imposed:

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A third factor mentioned in s21A(2)(e), that the complainant was vulnerable (by reason of her youth), should not be taken into account as an aggravating factor because her age was an element of the offence itself ( The Queen v De Simoni ; s21(4)). Age of the victim is relevant in the assessment of objective gravity in that, generally, the younger the victim, the more serious might be the offence. 36 Notwithstanding the weighty factors that lead to the imposition of a non-parole period substantially less than the standard non-parole period, in my opinion the diligent application of ss54A and 54B requires a very considerable increase on the sentence imposed. This Court was referred to sentencing statistics relative to offences punishable under the pre-Division 1A sentencing regime (with the acknowledgement that sentencing statistics are always of limited value, but that that value is even more limited in the light of the changes made by the 2003 amendments). The contrast between what those statistics reveal, and the standard non-parole period of 15 years, is striking and disturbing. Eighty per cent of offenders dealt with under s66A, before February 2003, were sentenced to total terms of imprisonment of between two and eight years, with non-parole periods in the range of 12 months to six years. Those figures sit uneasily against the standard non-parole period of 15 years - which is three fifths or 60% of the statutory maximum/head sentence. In Way this Court considered whether the amendments ought to be understood as reflecting a legislative intention that there be an increase in sentencing patterns ([132] - [142]) and while not detecting any such intention in the extraneous materials available to the Court for that purpose, nevertheless recognised that such might be the outcome: see paras [54] and [142]. 37 In my opinion, the legislature having fixed 60% of the statutory maximum as the standard non-parole period for s66A offences, it is inevitable that sentences for these offences will increase. Since the statutory maximum has always been acknowledged to be reserved for the worst offences of their kind, and since non-parole periods have (at least since the introduction of the Sentencing Act 1989) been benchmarked (prior to consideration of special circumstances justifying variation) at three quarters of the total term, a worst category s66A offence could ordinarily be expected to carry a non-parole period of eighteen and three quarter years. And yet, under the new provision, and absent reasons for departure, a mid range offence carries a standard non-parole period of 15 years, that is 80% of what the non-parole period that might previously have been expected to be imposed in relation to a worst case: that represents a remarkable increase. However, that is what the legislature has decreed, and it is for this Court to implement the dictates of the legislature. 38 In re-sentencing the respondent, I would adopt the sentencing judge's finding that special circumstances pursuant to s44(2), justifying departure from the statutory ratio between the non-parole period and the balance of the term, exist. My reasons are those of his Honour; the psychological evidence and the respondent's need for assistance on his release. This is particularly so, as the respondent has never been in custody before. 39 I would, bearing in mind and taking into account the additional offence, propose a non-parole period of two and a half years and a balance of term of two and a half years. Of particular relevance in this determination are the plea of guilty, the respondent's youth, and the principles relating to re-sentencing after Crown appeals, pursuant to which a sentence at the lower end of the properly available range should be imposed. 40 I propose the following orders:

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46 This is not to say that attempting to assess the objective seriousness of an offence has not been part and parcel of the traditional sentencing process under the common law. Plainly, it has. But that has not been a step which is used to compare the case at hand with a hypothetical case or a posited measure of punishment. Where a case might fall in the most serious category of case, or close to it, it is of course appropriate to consider whether the maximum available sentence is called for or the extent to which it is not. That judgment, however, is made at the end of the process of assessing synthetically and intuitively all of the objective and subjective circumstances of the case. No abstract "worst class of case" is hypothesised: the question is whether the particular case under consideration answers such a description. Other cases that plainly do not call for the maximum, nevertheless call for sentencing that bears in mind the maximum. Again, the extent by which the sentence in those cases is less than the maximum is not determined by measuring it against some hypothesised worst case but by applying the accumulated judgment of the courts to crimes of that kind, the particular judgment of the judge as to the application in the instant case of the purposes and functions of punishment and, in the end, that judge's conscientious conclusion of what justice and the law both permit and require. It seems to me that the "middle-of-the-range-of-objective-circumstances" must be treated in much the same way - not as a list of such circumstances or a hypothesised "abstract case" but as a standard which is used where the court considers that the objective circumstances in the particular case indeed reflect such a measure of seriousness (although this means that the case must have some content). This is far more difficult an exercise than assessing whether a case falls into the worst category (or, for that matter, the bottom of the range) for the obvious reason that the concept of the "middle of the range" is very much more imprecise, an imprecision that does not arise from any shortcoming in the legislation but from the inherent character of the test itself and the multifarious factual circumstances that each case presents. At the same time, cases do fall into patterns and classes of case can be described which reflect similar elements. As time goes on there will emerge a consensus or an understanding of the kind of pattern and the degree of gravity which a "middle case" will usually exhibit.

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48 In its terms, s45B applies to all the prescribed offences and requires the standard non-parole period to be applied unless the matters referred to in s21A justify a departure. Whether those matters justify departure must be considered in two different although not entirely unconnected ways. If the objective circumstances may be said to bring the case into the middle of the range of objective seriousness, then the standard non-parole period must apply unless the subjective circumstances justify departure. On the other hand, if the objective circumstances do not place the offence in the middle of the range, then the standard non-parole period is not applicable except in the sense that it sets a marker or guide for such cases. It obviously cannot be applied in any precise sense, not only because, ex hypothesi, the circumstances of the particular case significantly differ from circumstances that would place it in the middle of the range but also because the standard non-parole period reflects the objective seriousness of the offence and does not take into account at all the subjective circumstances of the offender. 49 Of course, subjective circumstances may quite appropriately lead to a non-parole period which is markedly less than the standard non-parole period. The legislature has left this matter to the discretion of the courts, where it is subject to the requirement of proper reasons and the supervision of the Court of Criminal Appeal and, ultimately, to the High Court of Australia on important questions of principle. The distinction between objective and subjective elements of sentencing is, of course, vital, since it permits justice to be administered in the individual case. At the same time, objective and subjective circumstances are not altogether distinct, but are in a dynamic relationship, not only because - at the most obvious level - it is the particular offender who has committed the acts and brought about the results constituting the objective circumstances but also because their respective significance varies with the gravity of the crime. Although I have mentioned the possibly substantial effect of important subjective circumstances on the standard non-parole period, it is clear that objective circumstances may also lead to a significant difference. In requiring that the standard non-parole period for case in a middle of the range of objective seriousness be borne in mind as a "reference point, benchmark, sounding board or guidepost" (the very multiplication of metaphors suggests the elasticity of the process) it is, I believe, imperative also to bear in mind that it is not the only reference point, benchmark, sounding board or guidepost. Indeed, although it is important in the sense that it is essential that it must remain in view, it does not thereby become the most important consideration. The purposes of sentencing specified in s3A are also important. As a general rule a sentence should be no greater than is strictly required by those purposes. Where a sentence is greater than those purposes require, then it logically follows that it is serving other purposes which, by definition, are inappropriate. Of course, different minds may well differ on the sentence which appropriately reflects these purposes and, in principle, the sentence will fall in a range of appropriate (or, not inappropriate) terms. Hence the importance of collegiate or institutional understanding, and deference not only to other judges but also to the legislature. At the end of the day, of course, the judge is bound to give a sentence that reflects his or her understanding of what the justice of the case requires. When I say "justice of the case", I mean, of course, "justice-according-according-to-law". 50 For these reasons, I am troubled lest the metaphors about the relevance of the standard non-parole period lead to the conclusion that the period is the dominating consideration. For myself (and with unfeigned respect) I would prefer the somewhat less picturesque "borne in mind" or "kept in view", terms which reflect, I think, the way in which the maximum sentence plays its role in the sentencing process.

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