R v BA

Court of Criminal Appeal (NSW)|2014-07-18|Before: Gleeson JA, Fullerton J, McCallum J

Judgment 1GLEESON JA: I agree with McCallum J. The nature of the offending and the offender's subjective case are summarised in her Honour's reasons. The offending was obviously serious and involved an abuse of the child's trust and vulnerability by an adult who was in the position of a de facto father responsible for the care of his partner's child. The legislative guideposts for the purpose of sentence on count 5 (aggravated sexual intercourse with a child under 10 years contrary to s 66A(2) of the Crimes Act 1900 (NSW)) are a maximum penalty of life imprisonment and a standard non-parole period of 15 years. 2The sentencing judge observed (ROS 15): "The community is rightly disgusted by offences of this kind, particularly where such a young child is involved. Offenders who commit these types of acts must be adequately punished. The sentences should reflect the seriousness of the matters and be a message to others that such offences are very serious and people who commit such acts will be harshly dealt with." Yet here the sentence imposed in respect of count 5 was a non-parole period of 12 months and a balance of term of 18 months. 3The conclusion that the sentence imposed on count 5 was manifestly inadequate is evident chiefly from the nature of the offending, the absence of remorse on the part of the offender, and the guidance to be found in the sentences that have been imposed in other cases involving offences contrary to s 66A(2), although recognising the limitation which applies to a comparison between decided cases. 4The offender pointed to two particular circumstances said to produce injustice if the Crown appeal is allowed The first concerns the imminent occurrence of the offender's release on parole (on 14 October 2014); the second concerns the difficulties which the offender has experienced in gaol and the distress and anxiety occasioned by the fact that he may be re-sentenced. 5As to the first matter, I agree with McCallum J's reasons at [73] for rejecting the argument advanced on behalf of the offender concerning the loss of an "entitlement" to be released on parole if this Court were to intervene and impose a sentence of more than 3 years. However there remains for consideration the wider circumstance of the fact of the offender's imminent release on parole. This is a relevant consideration for the exercise of the "residual discretion" under s 5D of the Criminal Appeal Act 1922 (NSW) to decline to intervene to increase the sentence on a Crown appeal: Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 at [43] (French CJ, Crennan and Kiefel JJ). 6As to the second matter, the affidavit evidence from the offender concerning the difficulties which he has experienced in gaol, particularly as a result of his mental condition, and the actual distress and anxiety occasioned by the fact that he may be re-sentenced, is summarised in the reasons of McCallum J at [69]-[72]. Such material may properly be taken into account, being a subjective consideration of the particular offender who is subject to a Crown appeal. By contrast s 68A of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires that any presumed distress or anxiety occasioned by a Crown appeal must be disregarded: R v JW [2010] NSWCCA 49; 77 NSWLR 7 at [52] (Spigelman CJ; Allsop P at [92] and McClellan CJ at CL, Howie and Johnson JJ at [209] agreeing); Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28 at [175] (McClellan CJ at CL; Simpson J at [276], Barr J at [315] agreeing). 7I agree with McCallum J that this material, in combination with the other matters relied upon by Mr Smith for the offender, which I would take to include the circumstance of the offender's imminent release on parole, is insufficient to justify the Court to decline to intervene in the exercise of its residual discretion. 8I also agree with the re-sentence of the offender for count 5 proposed by her Honour and her Honour's reasons in that regard. 9FULLERTON J: I agree with McCallum J. 10McCALLUM J: Following a trial by jury, BA was found guilty of seven sexual offences against his de facto partner's six-year-old daughter. He was sentenced to a total term of imprisonment with a non-parole period of 12 months and a balance of term of 18 months. This is an appeal brought by the Director of Public Prosecutions on the ground that the sentences imposed were manifestly inadequate. 11The most serious count on the indictment was an offence of aggravated sexual intercourse with a child under 10 years contrary to s 66A(2) of the Crimes Act 1900 (count 5). That offence carries a maximum penalty of imprisonment for life. A standard non-parole period of 15 years is prescribed: see s 54A of the Crimes (Sentencing Procedure) Act 1999. In addition there were four counts of aggravated indecent assault of a child under the age of 16 years contrary to s 61M(2) of the Act (counts 1, 2, 6 and 7). That offence carries a maximum penalty of imprisonment for 10 years and a standard non-parole period of 8 years. Finally, there were two counts of committing an aggravated act of indecency towards a child under 10 years contrary to s 61O(2) of the Act (counts 3 and 4). That offence carries a maximum penalty of imprisonment for 7 years. No standard non-parole period is prescribed for that offence. 12In each case the circumstance of aggravation was that the victim was under the authority of the offender, having been left in his care at the family home while her mother went to the shops for a short period.

Sentences imposed 13The offences were all committed within a short period of time on the same day. In her remarks on sentence, the trial judge summarised the evidence at trial (which was not before this Court) in the following terms: "The complainant...is now seven years. At the time of the offences in August 2012 she was six years old. She lived with her mother and her one-year-old brother. The offender is the father of her one-year-old brother and had been in a relationship with her mother for about a two-year period...On 29 August the offences occurred in the home shared by the offender, his de facto wife and the children. His de facto wife had gone to a shop to pick up something she had ordered. In that time over about a twenty-minute period, the offender asked the complainant if she would kiss him on the lips, she said to that that she was not sure and he then kissed her on the mouth (Count 1). She felt uncomfortable, left and went into her bedroom. He followed her and kissed her again on the mouth (Count 2). In her bedroom he removed his shorts and underpants and exposed his erect penis. She described it as looking like a big bone or a big muscle. He asked her to lick it or to put her mouth around it and she refused (Count 3). Following that he asked her to kiss his bottom, she refused (Count 4). During this course of conduct she says that he kissed her and licked her near the area of her vagina. She also indicated on the diagram where that was, and that is the act upon which the most serious offence Count 5, rests. She says that he licked and kissed her bottom area (Count 6). She said that he did it for quite a long time and that she was trying to get away from him. Finally to Count 7: he kissed her on the lips in the lounge-room and said that he liked her." 14A victim impact statement tendered at the proceedings on sentence revealed that, unsurprisingly, the child has suffered terribly as a result of the offences, experiencing fear, guilt, anger, sadness, extreme mood swings, a belief that she was going "cookoo" and associated physical symptoms. Her sadness was exacerbated when, having been removed from the care of her mother, she was then also temporarily removed from the care of her grandmother as a result of a bizarre accusation made against the grandmother by the offender upon being confronted with the child's complaints. That is not an aspect of the offending conduct for which he stood to be sentenced but it underscores the absence of any remorse. 15The judge imposed the following individual sentences: (a) for counts 1, 2 and 7 (the three aggravated indecent assaults of kissing on the mouth), a term of imprisonment for 6 months. The judge made an order suspending the execution of those sentences and backdated them so as to commence on the date on which the offender was taken into custody. In the appeal, the Crown noted that it is not open to a sentencing judge to impose a suspended sentence that is concurrent with a sentence of full time imprisonment: see s 12(2) of the Crimes (Sentencing Procedure) Act 1999; R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551 at [32] per Wood CJ at CL; Studdert and Bell JJ agreeing at [66] and [67]. Further, it is not open to a sentencing judge to backdate a suspended sentence: see s 12(3) of the Crimes (Sentencing Procedure) Act; Pulitano v R [2010] NSWCCA 45 at [9] per Giles JA; R S Hulme and Latham JJ agreeing at [23] and [24]. However, in light of the fact that those sentences have expired and conceding that it was appropriate for them to have been served concurrently with the other sentences, the Crown did not rely on those errors in the appeal; (b) for counts 3, 4 and 6 (the two aggravated acts of indecency of exposing his erect penis and asking the victim to lick or put her mouth around it and asking her to kiss his bottom and the aggravated indecent assault of licking and kissing her bottom area) a term of imprisonment with a non-parole period of 6 months and a total term of 8 months; (c) for count 5 (aggravated sexual intercourse with a child under 10 based on the act of cunnilingus) a term of imprisonment with a non-parole of 12 months and a balance of term of 18 months, giving a total sentence of 2½ years. 16All of the sentences were wholly concurrent, being fixed to commence on 15 October 2013 (the date on which the offender was taken into custody following the return of the jury's verdicts). Accordingly, the total aggregate sentence was the sentence imposed for count 5. As the offender was found guilty after a trial, the sentences reflected no discount for a plea. 17The judge found that there were special circumstances warranting a departure from the statutory ratio of the non-parole period to the balance of term under s 44(2) of the Crimes (Sentencing Procedure) Act. Her Honour held that the applicant needed a longer period of supervision because he has displayed a sexual interest in a very young child. As observed on behalf of the Crown, the effect of the adjustment was that the non-parole period is 40% of the total term (compared with the statutory ratio, the application of which gives a non-parole period that is 75% of the total term). 18As required under s 50 of the Crimes (Sentencing Procedure) Act, the judge made a parole order directing the release of the offender on 14 October 2014. 19I note in passing that there is potential confusion as to the date to be stated in a parole order made by the court. Section s 44(1) of the Act states that the non-parole period is "the minimum period for which the offender must be kept in detention in relation to the offence". Section 50 requires the court, when imposing a sentence of imprisonment for a term of 3 years or less, being a sentence that has a non-parole period, to "make an order directing the release of the offender on parole at the end of the non-parole period" (my emphasis). In a triumph of precision over practicality, the Act assumes that sentences begin and end at midnight. That is the clear effect of s 47(4) of the Act, which assumes that there will be no break in custody between release on the day on which an offender becomes entitled to be released and the commencement of a consecutive sentence the following day: see s 47(4) of the Act. Accordingly, there is (at least in theory) no inconsistency between an order directing a person's release on the last day of the non-parole period and the requirement of s 44(1) that an offender must be kept in detention for the non-parole period. However, some courts have evidently experienced difficulty entering such orders in the court's computerised record system which, rejecting the logic of the Act, insists that the offender is not eligible to be released until the day following the last day of the sentence. That difficulty can be avoided by making an order in the terms of the section, not specifying a date but simply directing "that the offender be released on parole at the end of the non-parole period".

Appeal confined to count 5 20Although the Crown alleged in written submissions that "the sentences individually and as accumulated" were manifestly inadequate, the balance of the submissions dealt exclusively with the inadequacy of the sentence imposed for count 5. Accordingly the Crown accepted that, in fairness, it was appropriate for this Court to confine its attention to that sentence. In proceeding on that basis, this Court should not be taken to have implicitly accepted the correctness of the sentences imposed for counts 3, 4 and 6, which were also extremely lenient.

The offender's case 21The offender pleaded not guilty to all offences. So far as the evidence reveals, he is yet to accept any responsibility for his offending, embracing the prospect of treatment only to the extent of being prepared to participate in the "deniers" programme offered by corrective services or else private counselling. Upon questioning by authorities and in the trial, he effectively sought to blame the victim for anything that had taken place, saying that she had propositioned him and had kissed him on the lips with her tongue and shown him her vagina. He also said that the victim had told him that her grandmother had kissed her on the mouth and on the vagina and the bottom. At the time he first made that allegation, it resulted in the victim being removed from the care of the grandmother, to whom she had been entrusted after being removed from the care of her mother following the allegations against the offender. As observed by the sentencing judge, the jury evidently rejected that account. 22The offender was almost 32 at the time of the offences and is now aged 33 years. Three reports as to his personal circumstances were placed before the sentencing judge. The first was a pre-sentence report prepared by corrective services. In light of the nature of the offending, the author of that report also obtained a pre-sentence consultation report from a community corrections psychologist, Ms Kara Thomson. The offender also tendered a report from a forensic psychologist, Ms Caroline Hare. 23The evidence at the proceedings on sentence also included medical records tendered by the offender which established that he suffers from a number of physical and mental conditions. 24As recorded by the sentencing judge, the offender had a largely supportive and loving upbringing. His father was a heavy drinker and a gambler who was quite abusive but the offender enjoyed a very close relationship with his mother. She was suffering from cancer at the time he was sentenced and has since died. Unfortunately, the offender was not permitted to attend her funeral. 25The judge noted that the offender had suffered significant psychological difficulties from a young age. He had separation anxiety when first attending school and was diagnosed with depression and school phobia at the age of 12. Between the ages of 13 and 18 he suffered from chronic fatigue syndrome. He spent a significant part of his youth on anti- depressant and other medication. In his early 20's he was diagnosed with agoraphobia as a result of which he was unable to leave the house. He suffers from anxiety and panic attacks, low self-esteem and a sense of worthlessness. 26The judge gave careful consideration to the psychological evidence in respect of those matters. Her Honour concluded that the offender's psychological state did not moderate the objective seriousness of the offending. 27The judge also appears to have concluded that the medical and psychological evidence fell short of establishing that the offender was an inappropriate vehicle for general deterrence. Her Honour said: "I do not accept that the principles enunciated in Hemsley do apply in the sense of moderating the objective seriousness and the view that the Court should take as to him being an appropriate vehicle for general deterrence, however they are matters that will be taken into account in regard to his subjective factors." 28Separately, however, her Honour accepted that "because of his medical and psychological conditions a period of full time custody will be more difficult for him than most people in his position". 29Both Ms Thomson and Ms Hare assessed the offender on the STATIC-99 criteria to be in the low risk category of re-offending. However, Ms Hare also said: "Given the areas of dynamic risk that [BA] evidences, I believe that his risk of sexually re-offending falls within the mid range of the risk estimates cited above. " 30The factors she thought increased his likelihood of committing sexual offences were the fact that he continues to maintain his innocence, problems with stress and coping, his experience of emotional abuse by his father (which had an impact on his feelings of self worth), his long history of mental health problems which impair his capacity to function effectively (particularly concerns characterised by low self esteem, fearfulness and anxiety) and his inability to maintain employment which in turn has exacerbated his feelings of worthlessness. 31Ms Hare also recorded some strengths or "protective factors", including the fact that these are the offender's first criminal convictions, the apparent absence of a psychopathic personality disorder and his willingness (notwithstanding his denials) to engage in treatment.

Assessment of the objective seriousness of the offence 32The judge assessed all of the offences, including count 5, as falling "towards the lower end of the range of objective seriousness despite the fact that the complainant child was very young". Her Honour noted that it was an isolated event and, although giving rise to seven separate charges, could be regarded as one ongoing event that occurred over a relatively short period of time (20 minutes). 33The primary focus of the submissions put forward on behalf of the offender at first instance was the contention that there was a complete absence of many of the "typical aggravating features in cases such as this". The judge accepted some aspects of that submission. In particular, in reaching her conclusion as to the seriousness of the offences, her Honour recorded the absence of any suggestion that the offender used force or a threat of force. The use of force would have been an aggravating factor but I do not think its absence could sustain the conclusion that the offending was at the lower end of the range. An aspect of the seriousness of sexual offences committed against young children is that their youth and inexperience deprives them of the capacity to resist or protect themselves. The fact that an adult entrusted with the care of a child is able to prey upon the child's trust and vulnerability to commit sexual offences without resort to the use of force is hardly a mitigating factor. It speaks of a pernicious abuse of trust. 34The offender also submitted that there was "no importuning by the offender to the victim to keep a secret". The judge rejected that submission, finding that there was an implied threat when the offender told the victim he might get a school friend of hers to come over. The judge held that this remark amounted to an implied threat to embarrass the child but did not consider it to be of significant seriousness. 35In addition to the absence of force or any threat of force, the judge referred to three matters to support the conclusion that the objective seriousness of the offences (including count 5) fell towards the lower end of the scale. First, her Honour noted, correctly, that it was an isolated event in which all of the offences were committed over a relatively short period of time on the one day. 36Secondly, her Honour said that although there was "a level of persistence" shown in following the victim to her bedroom, the offender stopped when the victim made it clear that she was not interested in going along with the acts that he wanted her to do "beyond kissing near the vagina...and licking and kissing her bottom area". According to the judge's recitation of the evidence, the victim had also said that he licked her near the vagina. The summary of the facts set out above suggests that those acts occurred after the victim had resisted performing other acts, but I accept that is not entirely clear. 37Finally, the judge said that the nature of the act (evidently a reference to count 5) fell towards the lower end of seriousness "in that there was no penetration". I would respectively disagree with her Honour's evaluation in that respect. The Crimes Act defines sexual intercourse in several ways. Penetration of the vagina is one form of sexual intercourse, as defined in s 61H(1)(a). Cunnilingus is defined as a separate kind of sexual intercourse, in s 61H(1)(c). It does not entail penetration as an element. The term cunnilingus refers to oral stimulation of the female genitals with the mouth or tongue. Penetration during an act of cunnilingus could be an aggravating factor, but I am unable to accept that the absence of penetration during such an act is a factor which supports an assessment that the conduct falls towards the lower end of the range of seriousness. The Act provides no basis for concluding that cunnilingus is to be considered any more or less serious in itself than an act of fellatio (s 61H(1)(b)) or penetration of the vagina (s 61H(1)(a)). Each case must be assessed according to its own circumstances. I would accept the Crown's submission that the act of cunnilingus performed by a mature man on a child of six years who is under his authority and within his family involves significant criminality. 38In written submissions on the appeal, it was faintly suggested that the seriousness of the act was less on account of having been performed while the victim was standing up. That was a submission put to the sentencing judge but not adopted in her Honour's reasons. Had the submission commended itself to her Honour, no doubt she would have embraced it. Without having had the benefit of hearing the victim's evidence, this Court is in no position to judge the significance of that aspect of the offending conduct for the first time. It is enough to say that the offender had to be sentenced on the basis of an act of cunnilingus, whatever position the victim was in at the time. 39Mr Smith, who appeared for the offender in the appeal, frankly conceded that the sentence imposed for count 5 is very low and, indeed, hard to defend. He noted, however, that s 66A(2) is a relatively new section (the section commenced on 1 January 2009). Mr Smith accordingly submitted that it is difficult to identify any range of appropriate sentences that has yet emerged. However, even on the strength of the relatively small number of decisions of this Court that have dealt with sentences for offences against the new section, it is clear that the sentence imposed in the present case represents a radical departure from the range, such as it is. 40It may be accepted that most if not all of those decisions involved more serious offending, in some instances significantly so. 41In GN v R [2012] NSWCCA 96 (decided in May 2012), the offender was sentenced for one offence contrary to s 66A(2). The offence charged was a single occasion of penile penetration of the vagina but the agreed facts revealed that it was not an isolated event. The circumstance of aggravation was that the victim, his nine-year-old stepdaughter, was under his authority. The offender had been abused in the past, was of a very low IQ and suffered from depression. He pleaded guilty and received a discount of 25 per cent. He was sentenced at first instance to term of imprisonment for 10 years and 8 months with a non-parole period of 8 years. 42By majority, the Court of Criminal Appeal reduced the sentence to a term of imprisonment for 9 years with a non-parole period of 6 years: at [17] per Basten JA; Blanch J agreeing at [18]. The sole ground of appeal was that the sentence at first instance entailed error of the kind identified by the High Court in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 (having been decided before that case). Beech-Jones J dissented, holding that no lesser sentence than that imposed at first instance was warranted in law (at [96]). 43In JRM v R [2012] NSWCCA 112 (decided in June 2012), the offender was sentenced at first instance for two offences contrary to s 66A(2) in the context of ongoing offending against his 9 year old son. The circumstance of aggravation appears to have been that the offender was in a position of authority. One offence involved fellatio performed by the offender on the victim, the other involved fellatio performed by the victim on the offender. The offender was sentenced for a series of other sexual offences at the same time. He pleaded guilty and received a discount of 25 per cent. For the first s 66A(2) offence he was sentenced to imprisonment for 10 years with a non-parole period of 7 years. For the second, he was sentenced to imprisonment for 8 years with a non-parole period of 6 years. The sentences were wholly concurrent, giving an aggregate sentence (for those two offences) of 10 years with a non-parole period of 7 years. 44The Court of Criminal Appeal held that, in determining the offences to be above the mid-range and somewhere in the middle of the mid to high range, the judge wrongly had regard to the other offending (at [25] per R S Hulme J; Hoeben JA and Fullerton J agreeing). Conversely, however, the Court considered that the sentences ought to have been accumulated to some extent, since they were committed on different dates. The Court re-sentenced the offender for Count 2, to a term of imprisonment for 5 years and 4 months with a non-parole period of 4 years and, for Count 1, to a term of imprisonment for 7 years with a non-parole period of 4 years commencing 3 years after the sentence for Count 2. Accordingly, the total effective sentence was not reduced but the individual sentences were. 45The circumstances in JRM were unusual and its helpfulness for future guidance has been doubted: see Leslie v R [2013] NSWCCA 48 at [78] per McClellan CJ at CL; Latham and Adamson JJ agreeing. In any event, taking account of the discount for the plea, the starting point for the first offence was about 7 years. Further, the sentences identified above were individual sentences in the context of broader offending and may accordingly have been reduced to take account of the principle of totality. 46In RJT v R [2012] NSWCCA 280 (decided in December 2012), the offender was convicted of two offences against his seven-year-old daughter. The circumstance of aggravation was that the offender was in a position of authority. The conduct in each case was the same (involving the offender rubbing his penis around the child's upper legs and vagina before committing an act of cunnilingus upon her). However, one offence fell under s 66A(2) while the other fell under the old s 66A, which carried a maximum penalty of imprisonment for 25 years. The offender had been a victim of abuse himself and reported those offences to police after his own offending was reported. He entered a late plea of guilty and received a 10 per cent discount. 47At first instance, he was sentenced to a total of 10 years imprisonment with a non-parole period of 6 years and 6 months. The individual sentences were: for the s 66A offence, imprisonment for 7 years with a non-parole period of 4 years and 6 months; for the s 66A(2) offence, imprisonment for 9 years starting one year later with a non-parole period of 5 years and 6 months (taking two further offences into account on a Form 1 of committing an act of indecency towards a person under 10 (s 61O(2)) and aggravated indecent assault (s 61M(2)). 48By majority, the Court of Criminal Appeal held that the applicant should be re-sentenced so as to achieve a total of 9 years imprisonment with a non-parole period of 5 years and 10 months. The individual sentences were: for the s 66A offence, a term of imprisonment for 6 years and 3 months with a non-parole period of 4 years; for the s 66A(2) offence, a term of imprisonment for 8 years with a non-parole period of 4 years and 10 months starting one year later. 49The sole reason for reducing the sentence was to allow a discount for assistance to authorities, which the judge at first instance had refused to allow. R A Hulme J dissented and would have dismissed the appeal. His Honour said (at [81]): "the sentences imposed in comparison to the maximum penalties available were relatively modest. Undoubtedly that was because of matters relating to the applicant's own history of abuse, particularly her Honour's finding of reduced moral culpability. Even if, contrary to the view I have formed, it was open to her Honour to consider reducing the sentence on account of the applicant's assistance to authorities, the discretion to do so should not have been exercised." 50In PK v R [2012] NSWCCA 263 (decided in December 2012), the offender committed a single offence of digital penetration of the vagina of a 13-month-old child. The circumstance of aggravation was the reckless infliction of actual bodily harm. The applicant was aged 18 years at the time of the offence. He pleaded guilty and received a discount of 25 per cent. At first instance, he was sentenced to a term of imprisonment of 13 years with a non-parole period of 8 years. The only successful grounds of appeal were those alleging Muldrock error, the offender having been sentenced before that decision. The sentencing judge had made it tolerably clear that, but for the application of principles by which he considered he was bound (subsequently disapproved in Muldrock), he would have imposed a lesser sentence on account of the applicant's youth and his extremely dysfunctional upbringing, which included the fact that the offender had himself been a victim of sexual abuse as a child. He was re-sentenced by the Court of Criminal Appeal to a term of imprisonment for 12 years with a non-parole period of 6 years: at [65] per McCallum J; Macfarlan JA and Price J agreeing at [1] and [2]. 51In Essex v R [2013] NSWCCA 11 (decided in February 2013), the offender was sentenced for a series of offences against his 3 year old step daughter described as "a course of serious neglect, culminating in violence being inflicted upon the victim, causing her serious injury". The offences included a s 66A(2) offence of inserting a hose nozzle into the vagina of as a form of discipline after she soiled her pants. The offender had pleaded guilty to some offences but not the s 66A(2) offence and does not appear to have received any discount to the sentence imposed. He was sentenced at first instance to imprisonment for 15 years and 6 months with a non-parole period of 11 years. 52The Court of Criminal Appeal found that the sentence entailed a number of errors including Muldrock error, failure to take into account the fact that the offence was not motivated by a desire for sexual gratification and wrongly regarding the fact that the offence was committed in the victim's home as a circumstance of aggravation (given that it was also the offender's home). The offender was re-sentenced to a term of imprisonment for 12 years with a non-parole period of 8 years and 6 months (at [77] per Bellew J; McClellan CJ at CL and Rothman J agreeing). 53In Leslie v R [2013] NSWCCA 48 (decided in March 2013) the offender pleaded guilty to three offences committed against an 8-year-old girl he had kidnapped from her home during the night. There were two s 66A(2) offences (digital penetration of the vagina and a forced act of fellatio until ejaculation). The trial judge found that the injuries sustained by the victim relevantly constituted circumstances of aggravation. The offender had been abused in the past. He was on bail at the time of the offences. 54At first instance, the offender was sentenced for the two s 66A(2) offences to terms of imprisonment for 19 years and 9 months with a non-parole period of 13 years and 9 months for the act of fellatio and 22 years and 6 months with a non-parole period of 15 years and 2 months for the act of digital penetration. The overall sentence for the 3 offences was 23 years and 6 months imprisonment with a total non-parole period of 16 years and 2 months, being 68% of the total term. The offender was aged 20 years at the time of the offences and 22 years at the time of sentence. But for his youth, the Court of Criminal Appeal would not have intervened. However, the Court was troubled by the potential of the total sentence to crush the offender's expectations of a normal life and destroy any prospect of rehabilitation (at [83] to [85]). In respect of the two s 66A(2) offences, the Court re-sentenced the offender to terms of imprisonment for 15 years with a non-parole period of 10 years and 17 years with a non-parole period of 11 years accumulated by one year. 55In Jolly v R [2013] NSWCCA 76 (decided in April 2013), the offender was sentenced for a number of sexual offences committed when he kidnapped a 6 year old girl from in front of her home on a Sunday morning. He returned her to the home less than two hours later. The offences to which he pleaded guilty included one offence under s 66A(2) based on an act of fellatio. The circumstance of aggravation was the deprivation of liberty. Based on the evidence of a psychiatrist, the judge accepted that the offender was not suffering from paedophilia and that the offences were committed as a result of, or were motivated by, a complex, deep seated and unresolved psychological and personality difficulty. The offender pleaded guilty and received a discount of 25 per cent. For the offence against s 66A(2), he was sentenced to imprisonment for 22 years with a non-parole period of 15 years. 56Acknowledging the caution with which comparative exercises must necessarily be approached, the Court of Criminal Appeal held the sentence was in excess of the range established by decisions of this Court: at [77] per Bellew J; Hoeben CJ at CL and Slattery J agreeing. The offender was re-sentenced for that offence to imprisonment for 18 years with a non-parole period of 12 years and 7 months. 57In Kertai v R [2013] NSWCCA 252 (decided in November 2013) the offender was sentenced for a single offence under s 66A(2) of digital penetration of the vagina of a five year old girl. He was a family friend. The offence occurred when the offender was entrusted to take the child fishing. The circumstance of aggravation was that she was under his authority. The offender had previously received a suspended sentence for similar offences against a 9 year old girl. He was convicted after a trial and accordingly received no discount. He was sentenced at first instance to a term of imprisonment for 12 years with a non-parole period of 7 years. An application for an extension of time to appeal following the publication of the decision in Muldrock was refused on the grounds that, notwithstanding the principles stated in that decision, the sentence was not unreasonable or plainly unjust: at [39] per Hoeben CJ at CL; Johnson and Bellew JJ agreeing. 58R v Gavel [2014] NSWCCA 56 was a Crown appeal against an aggregate sentence. The offences were committed over an ongoing period against the step-daughter of the offender's ex wife. They included three offences contrary to s 66A(2) of licking the victim's vagina while playing a sexually explicit video, inserting two fingers inside the victim's vagina and squeezing flavoured gel into the victim's vagina and then licking it off. There were also other sexual offences for which the offender was sentenced at the same time. The circumstance of aggravation was that the victim was under the offender's authority. The offender pleaded guilty and received a 25 per cent discount. The aggregate sentence imposed at first instance was a term of 8 years with a non-parole period of 5 years and 4 months. The Court of Criminal Appeal held that the sentence was manifestly inadequate and re-sentenced the offender to a term of 14 years with a non-parole period of 9 years and 6 months. The indicative sentences for the s 66A(2) offences (after allowing a discount of 25% for the guilty pleas) were imprisonment for a period of 10 years with a non-parole period of 7 years and 6 months (taking account of further offences on a form 1); and imprisonment for 8 years with a non-parole period of 6 years for the other two offences. 59Finally, on the day on which the present appeal was heard, this Court published its judgment in JL v R [2014] NSWCCA 130. That was an extremely serious case. The offender pleaded guilty to 21 sexual offences committed against his 7 year old daughter and had a further 7 offences taken into account on a Form 1. There were two offences under s 66A(2) based on an act of fellatio and an act of full penile intercourse with the female victim. The judge imposed an aggregate sentence for all offences. For each of the two offences against s 66A(2), the indicative sentence was a term of imprisonment for 12 years with a non-parole period of 9 years. The aggregate sentence was a term of imprisonment for 18 years with a non-parole period of 13 year and 6 months. The offender's appeal against sentence was dismissed. 60Whether or not it is possible or helpful to state a "range" for this offence, those decisions reveal that substantially longer sentences are being imposed for offences contrary to s 66A(2) than was imposed in the present case. 61The offender noted that appellate intervention on the ground of manifest inadequacy is not justified simply because the result arrived at by the sentencing judge is markedly different from sentences that have been imposed in other cases, citing Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520. The significance of historical sentencing patterns was carefully explained by the High Court in that case. Approving the remarks of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303][305], the Court noted (in the joint judgment at [54]) that a history of sentencing does not establish the "correct range" or its upper or lower limits. However, such patterns do provide guidance for the purpose of discerning unifying principles. 62In a separate judgment in Hili, Heydon J explained the importance and legitimacy of judicial discretion in sentencing. His Honour noted that "it is possible for two courts, each acting on an identical legal principle, making no error of fact, omitting no relevant consideration and taking into account no irrelevant consideration, to arrive at different sentences without either of them being "wrong" (at [74]), so that a disparate sentence is not necessarily wrong merely because it is disparate. The importance of any review of earlier sentencing decisions lies in the task of discerning whether they establish any principle as to how the sentencing discretion should be exercised. 63A central principle is that the Court's discretion, although wide, is not at large. The Court is obliged to accept the dictates of Parliament as to the seriousness of the kind of conduct in question, as indicated by the statute. As I said in JL at [53] (with the agreement of the other members of the Court), the maximum penalty of life imprisonment for the offence of aggravated sexual intercourse with a child under the age of 10 places that offence in the same category of seriousness as murder, violent rape in company and dealing in large commercial quantities of prohibited drugs: cf s 19A, 61JA of the Crimes Act; s 33 of the Drug Misuse and Trafficking Act 1985. 64Plainly, there will be vastly different degrees of seriousness of conduct falling within the section. Acknowledging the wide measure of latitude in the sentencing discretion which will be respected by appellate courts, I am satisfied that the sentence imposed in the present case was erroneously inadequate. As submitted by the Crown, an act of cunnilingus performed by an adult male on a six year old child in his care involves significant criminality. The offender pleaded not guilty and has shown no remorse. The judge found that his psychological state did not moderate the objective seriousness of the offending. The child was well below the age of 10 years and was extremely vulnerable on that account. Conversely, she was old enough to remember the offending conduct and to suffer significantly as a result (cf PK at [40]).

Discretion not to intervene 65This Court retains a residual discretion under s 5D of the Criminal Appeal Act 1912 to dismiss the Director's appeal even though the sentence is erroneously lenient. That remains the position notwithstanding the abolition of the double jeopardy principle by s 68A of the Crimes (Appeal and Review) Act 2001: see Green v R; Quinn v R [2011] HCA 49; (2011) 242 CLR 462 at [26]; R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7 at [95] per Spigelman CJ; Allsop P agreeing at [205]; McClellan CJ at CL, Howie and Johnson JJ agreeing at [209]. However, the abolition of the double jeopardy principle prevents an appellate court from basing a decision not to intervene or to impose a sentence less than that which it otherwise believes to be appropriate on the distress and anxiety to which all respondents to a Crown appeal are presumed to be subject if they have to undergo sentencing for a second time. 66The residual discretion enables the Court to protect a convicted person against unfairness or injustice. The specific injustice engaged in the case of Green and Quinn was that an increase in the sentences imposed on them created disparity with the lenient sentence imposed upon a co-offender whose sentence was not the subject of a Crown appeal. Allowing the appeals thus offended the norm of equal justice and so suffered this Court to become an instrument of unequal justice: at [4]. 67It is necessary to consider whether there is a proper basis for exercising the residual discretion in the present case. 68In support of the contention that the Court should dismiss the Crown's appeal even if satisfied of error, Mr Smith repeated the matters relied upon in resisting the appeal (considered above) as well as a number of additional matters. 69There was an affidavit sworn by the offender. He described the difficulty he has experienced in gaol, particularly as a result of his mental condition. He suffers severe anxiety and has on several occasions been moved to correctional centres which have a risk intervention team. He has attempted self-harm by cutting his wrists. 70He has suffered from significant additional anxiety as a result of the Crown appeal. He stated that, after being sentenced, the feeling of uncertainty he had during the period leading up to sentence disappeared but that it returned days later when the notice of the Crown appeal was served. 71As already noted, the offender's mother died after his sentence was imposed. His anxiety has evidently been exacerbated by a measure of unresolved grief on that account. 72The offender's affidavit also sets out some detail of the circumstances of his incarceration including the fact that he is on protection and spends a significant amount of time in his cell each day. He has received no visits from friends or family whilst in custody and finds that "very hard". As foreshadowed in the findings of the sentencing judge, it appears that he is serving his sentence in an onerous way due to his poor mental health. That is not an unusual feature of prison but appears to be acute in the present case. The decision in JW does not preclude taking evidence of specific distress and anxiety into account if it is relevant to the issue of the injustice of facing a Crown appeal. 73Mr Smith also relied upon the fact that the offender presently has an entitlement to be released on parole (on 14 October 2014). He noted that, if this Court were to intervene and impose a sentence of more than 3 years, the offender would lose that entitlement. I do not think that is a relevant consideration in determining whether to exercise the discretion not to intervene, or indeed in determining the appropriate sentence if the appeal is allowed. The requirement under s 50 to make a parole order in the case of a sentence of 3 years or less is a consequence of the imposition of such a sentence rather than a reason for imposing it. If this Court determines that a sentence of more than 3 years is appropriate, the offender will have lost something to which he was not entitled in the first place. 74The matters referred to by Mr Smith have not persuaded me that the offender in this case faces the prospect of any unfairness or injustice such that this Court should exercise its discretion to dismiss the appeal notwithstanding established error. In my view, the sentence imposed is so inadequate that the only appropriate course is for this Court to allow the appeal. 75Accordingly, it is necessary to re-sentence the offender for count 5. Mr Smith noted that the sentencing judge did not make a finding that the offender had good prospects of rehabilitation or a finding that his risk of re-offending was low. He invited this Court to make those findings. 76I am not persuaded that the offender has good prospects of rehabilitation or that his risk of re-offending is low. I accept, as submitted by Mr Smith, that the fact that an offender has not accepted responsibility for his offending does not necessarily preclude such findings. However, in the absence of any acceptance of responsibility for his offending, I am not persuaded in the present case that his prospects of rehabilitation could be described as good. In that context, I note that Ms Hare regarded the offender's denial of his offending as a factor increasing his likelihood of re-offending. As already noted, the dynamic risk factors led her to conclude that his risk of sexually re-offending fell within the mid range of the risk estimates set out in her report. 77Section 68A of the Crimes (Appeal and Review) Act 2001 precludes this Court from imposing a less severe sentence than would otherwise be appropriate because of the element of double jeopardy involved in being exposed to a Crown appeal. In JW, this Court held that the section prevents this Court from reducing the sentence which it otherwise believes to be appropriate on the basis of the distress and anxiety to which all respondents to a Crown appeal are presumed to be subject. However, the Court accepted that any actual anxiety and distress of an offender facing a term of imprisonment may be relevant to the subjective circumstances of that particular offender and that s 68A was not directed to that consideration: at [52] per Spigelman CJ; Allsop P agreeing at [205]; McClellan CJ at CL, Howie and Johnson JJ agreeing at [209]. 78The evidence in the present case establishes to my satisfaction that this particular offender, by reason of his chronic depression, anxiety and agoraphobia, has endured particular anxiety in the face of the Crown appeal and in the conditions in which he is serving his sentence. But for that conclusion, I would have imposed a more severe sentence. 79The offender will plainly need extended supervision on parole. The judge's finding of special circumstances on that account should be reflected in the sentence imposed by this Court. 80The orders I propose are: (1)that the appeal be allowed; (2)that the sentence imposed at first instance for count 5 be varied to a term of imprisonment with a non-parole period of 4 years commencing on 15 October 2013 and expiring on 14 October 2017 and a balance of term of 2 years expiring on 14 October 2019; (3)that the parole order made at first instance be set aside.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 July 2014

Criminal Appeal Act 1922(NSW)

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