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[2000] NSWCCA 60
Court of Criminal Appeal (NSW)
2000-03-07
Sheller JA, James J, Dowd J, Dowd JJ
Original judgment source is linked above.
CITATION : R v BJW [2000] NSWCCA 60 FILE NUMBER(S) : CCA 60466/99 HEARING DATE(S) : 7 March 2000 JUDGMENT DATE : 14 March 2000
PARTIES : Crown - Appellant BJW - Respondent JUDGMENT OF : Sheller JA at 1; James J at 35; Dowd J at 36
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/1157 LOWER COURT JUDICIAL Acting Judge Ford QC OFFICER :
COUNSEL : Crown - C K Maxwell QC Respondent - M Ierace SC SOLICITORS : Crown - S E O'Connor Respondent - T A Murphy CATCHWORDS : CRIMINAL LAW AND PROCEDURE - CROWN APPEAL - INADEQUACY OF SENTENCE - MULTIPLE SEXUAL OFFENCES AGAINST STEP-DAUGHTER - OFFENDER'S HEALTH AND EFFECT OF CUSTODY LEGISLATION CITED : Crimes Act 1900 R v Gebrail (unreported CCA 18.11.94 R v Skinner (1994) 72 A CrimR 151 R v Hudson (unreported) CCA 30.7.98 R v Bamford (unreported) CCA 23.7.91 R v PWH (unreported) CCA 20.2.92 R v L (unreported) CCA 17.6.96 CASES CITED: R v Smith (1987) 44 SASR 587 R v Sopher (1993) 70 A CrimR 570 Everett v The Queen (1994) 181 CLR 295 Griffiths v The Queen (1977) 137 CLR 293 R v Barbara (unreported) CCA 24.2.97 House v The King (1936) 55 CLR 499 R v Dodd (1991) 57 A CrimR 349 DECISION : 1. Appeal allowed; 2. Sentences imposed by his Honour Judge Ford on 18 June 1999 in respect of counts 2, 3, and 4 be quashed; 3. In lieu thereof ; (a) on count 3 the respondent is sentenced to 5 years penal servitude consisting of a minimum term of 3 years and 9 months commencing on 21 May 1999 and expiring on 20 February 2003 on which date the respondent will be eligible to parole and an additional term of 1 year and 3 months commencing on 21 February 2003; (b) on counts 2 and 4 the respondent is sentenced to fixed terms of 3 years and 9 months commencing on 21 May 1999 and expiring on 20 February 2003; 4. The sentences imposed by Judge Ford in respect of counts 1, 5 and 7 are confirmed; 5. The sentences imposed or confirmed by this Court are to be served concurrently.
REGINA v BJW The respondent was found guilty of five counts of sexual offences against his step-daughter and one count of assault. The complainant was aged between 9 and 23 years at the time these offences were committed. All charges were denied by the respondent and no sign of contrition was shown. At trial, there was evidence that the respondent suffered chronic lower back pain, epilepsy and migraine attacks. He required regular medication. There was also medical evidence that long term imprisonment might contribute to depression. In his remarks on sentence, Ford DCJ gave effect to the medical evidence and "substantially reduce[d] the sentence which would otherwise have been imposed". His Honour imposed a total effective sentence of 2 years and 8 months. The Crown appeals against this sentence. Held: (by Sheller JA, James and Dowd JJ agreeing)
IN THE COURT OF CRIMINAL APPEAL 60466/99
1 SHELLER JA: The Director of Public Prosecutions by a notice of appeal signed on 3 August 1999 appeals against sentences pronounced on 18 June 1999 by Acting Judge Ford QC in the District Court at Campbelltown in respect of six offences for which the respondent, BJW, had been convicted. A copy of the notice of appeal was served on the respondent on 18 August 1999. 2 The respondent was indicted on seven counts, the first six of which alleged sexual offences and the seventh assault. In each case the complainant was the same person. On 21 May 1999 the jury returned with verdicts of guilty on six of the counts, counts 1 to 5 and 7, and a verdict of not guilty on count 6. 3 The complainant was born on 31 December 1974. In 1984 the respondent began a de facto relationship with her mother. They were married in 1987. The six offences of which the respondent was found guilty occurred between November or December 1984, when the complainant was 9 or 10 years of age, and 24 January 1998 when she was 23. 4 The first charge was of indecent assault in 1984 when the complainant was under 16 years of age. The charge was laid under s61E(1) of the Crimes Act 1900, since repealed. The maximum penalty was 6 years penal servitude. The second charge was of carnal knowledge between 28 August and 10 September 1985 of a girl above 10 and under 16 years. This charge was laid under s71 of the Crimes Act, since repealed, and carried a maximum penalty of 10 years penal servitude. The third charge was of sexual intercourse between 4 and 11 July 1987 with a child between 10 and 16 years and under the authority of the respondent. This charge was laid under s66C of the Crimes Act and carried a maximum penalty of 10 years penal servitude. The fourth charge, laid under the same section, was of sexual intercourse on 30 October 1988 with a child between 10 and 16 years and under the authority of the respondent. The fifth charge was of carnal knowledge between 28 June 1991 and 31 December 1991 of a girl of and above the age of 16 years and under the age of 17 years, the respondent being her step-father. This charge was laid under s73 of the Crimes Act and carried a maximum penalty of 8 years penal servitude. The seventh charge was of assault occasioning actual bodily harm on 24 January 1998 laid under s59 of the Crimes Act and carried a maximum penalty of 5 years penal servitude. 5 Judge Ford sentenced the respondent as follows. On the fifth count of carnal knowledge by the respondent being the complainant's step-father when the complainant was 16, his Honour imposed a minimum sentence of 2 years imprisonment commencing on 21 May 1999, the day the respondent was taken into custody, and an additional term of 8 months concurrent with the sentences imposed for the other five charges. On each of the first, second, third and fourth charges, his Honour imposed concurrent fixed terms of 2 years imprisonment commencing on 21 May 1999. On the seventh charge, he imposed a concurrent fixed term of 12 months imprisonment to commence on 21 May 1999. The term of the total effective sentence was 2 years and 8 months. 6 In his remarks on sentence his Honour gave little detail of the facts of, and circumstances surrounding, the offences of which the respondent was found guilty. This may be explained by the hearing having taken place between 17 and 21 May 1999 and there being no further evidence on sentence apart from a pre-sentence report dated 18 June 1999 and a medical report from Dr Singham of 16 June 1999. At the trial the respondent denied all the charges made against him. The parties on this appeal are agreed that we proceed on the following short statement of facts. 7 The facts giving rise to the first count were that between 1 November 1984 and 31 December 1984, the complainant was living at Lethbridge Park, with her mother and the respondent. On one evening between these dates, the respondent called the complainant to his bedroom. He was lying on the bed. The respondent indecently assaulted the complainant by taking her hand and placing it on his penis. The complainant was aged 9 or 10 years. 8 The facts giving rise to the second count were that on an occasion between 28 August 1985 and 10 September 1985 at the family home at Lethbridge Park, the complainant awoke in her bed to find the respondent on top of her. The respondent started to touch her breasts and vagina. He took her pyjama pants off and sexually assaulted her by penile penetration. The complainant's mother was then in hospital giving birth to the respondent's daughter. The complainant was aged 10. 9 Two weeks before Christmas in 1986, the complainant together with her mother and the respondent moved to Werrington Downs. The respondent and the complainant's mother married on 4 July 1987. The facts giving rise to the third count were that on an occasion at Werrington Downs between 4 July 1987 and 11 July 1987, the complainant was asleep in her bedroom when the respondent came into her bed and sexually assaulted her by penile penetration. He then ejaculated into a handkerchief. The complainant was aged 12 years. 10 The facts giving rise to the fourth count were that on 30 October 1988, when the complainant's mother was overseas, the respondent had returned home with the complainant after taking her swimming. He then undressed her and sexually assaulted her by penile penetration. The complainant was aged 13 years. 11 The facts giving rise to the fifth count were that when the complainant was working at a restaurant in Penrith between 28 June 1991 and 31 December 1991, the respondent was in the habit of picking her up after work and driving her home. On an occasion after the respondent had picked up the complainant from work, he drove to a location near the Nepean River and sexually assaulted her by penile penetration while in the back seat of the car. The complainant was aged between 16 and 17 years. 12 The facts giving rise to the seventh count were that on the afternoon of 24 January 1998, the respondent was making sexual advances upon the complainant. As a result of her resisting these advances, an argument broke out. The respondent grabbed hold of the complainant by her upper arms and threw her against a wardrobe. The complainant suffered bruising as a result of this incident. According to the sentencing Judge, the complainant had announced that she was leaving home where she had resided with her mother and the respondent. 13 The respondent was interviewed by police. He declined to comment in respect of the indecent assault matters. He admitted that he had engaged in sexual activity with the complainant when she was 16 years and 9 months. He admitted being in an argument and scuffle with her but denied throwing her against a wardrobe. The respondent further stated that he had had sexual intercourse with the complainant a number of times after she had turned 16 years and 9 months. 14 The respondent was born on 3 September 1956 and was aged 42 at the time of sentencing. He committed the offences charged when he was aged between 28 and 41. 15 After leaving High School at the equivalent of year 9, the respondent had worked as a truck driver for 12 years until he sustained a work place injury, the result of a motor vehicle accident. He then sought more appropriate employment. For the 4 years up to the date of sentencing, he was on a disability pension because of chronic lower back pain and epilepsy and suffered from frequent migraine attacks. In the past he had required regular medical attention. Since his marriage in 1987 he had lived with his wife and two children who are school aged. He is supported by his wife and family and has no previous convictions. 16 Judge Ford's remarks on sentence were brief. His Honour observed that the respondent had denied any sexual involvement with the complainant before she reached the age of 16 and said that he had had an affair with her but "the jury obviously did not accept your explanation as regards most of these charges." His Honour referred to Dr Singham's report. Dr Singham had known the respondent for a period of 12 years and said the respondent had a long standing history of chronic lower back pain, epilepsy and frequent migraine attacks. He required regular medical attention to control his epilepsy attacks. He was currently on Epilum 500mg and Panadeine Forte. He required regular monitoring for his epilum levels. Dr Singham expressed the opinion that long term imprisonment might contribute to depression. Of this his Honour said that he had no doubt. He continued: "Ordinarily of course, these [sic are] very serious offences involving the abuse of a young child and particularly a person who is in your care, you being her step-father and you were her step-father, certainly in 1991, when you committed that offence." 17 The pre-sentence report referred to the respondent's family and said that, being incapacitated in recent times, the respondent's attention had centred largely upon his immediate family. Judge Ford referred to the respondent's work history and said that the respondent clearly did not admit the commission of the offences and showed no sign of contrition. The remarks on sentence then continued: "Because of the medical disabilities from which you suffer, you have been assessed as being unsuitable either for a community service order or for periodic detention. It is said that supervision by the Parole Service would be of only marginal benefit. The assessment of you as being unsuitable for community service or periodic detention gives due weight to the seriousness of your disabilities and it means, of course, that any period of imprisonment, full time custody that is, suffered by you would be quite considerably more harsh than it would be if you were fully fit. You are now approaching your forty third birthday and you have been incapacitated for the work that you ordinarily performed, now for some years. I propose to give effect to the medical evidence that has been presented here and I will substantially reduce the sentence which would otherwise have been imposed. I propose that you will not serve a minimum period of imprisonment for more than two years."
His Honour then imposed the sentences which I have summarised. 18 The Crown complained that the sentencing Judge failed specifically to refer to the facts of the offences proved, citing R v Gebrail (unreported) CCA, 18 November 1994 where at 6 Mahoney JA, with whose reasons both Newman and James JJ agreed, said: "It is, in my opinion, the duty of the trial judge in sentencing in a case such as this to make clear the findings of fact which have been made by him for the purpose of sentencing and the facts upon the basis of which he has assessed sentence: see generally R v Smith (1993) 69 A CrimR 47 at 48; R v Martin (1981) 2 NSWLR 640 at 642." 19 While the inadequacy of description of the facts may be explained by the way the trial was conducted, one consequence is that nothing is said about the impact on the complainant of the respondent's conduct over these impressionable years of her life. The first two offences were committed when the complainant was aged 9 or 10. This put her at the lower end of the age range for the second offence charged. The second offence was committed in the family home when the complainant's mother was in hospital. The third and fourth offences were committed when the complainant was aged 12 and 13 and under the authority of the respondent. In the case of the third offence charged, the respondent came upon the complainant when she was asleep. In the case of the fourth count, he took advantage of her mother's absence overseas. 20 The impact on the complainant, then a child, of these four occasions of sexual abuse, was not mentioned by the sentencing Judge though it can safely be assumed to have been traumatic and appalling. The maximum penalties the legislature has set for such offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim. See the remarks of Kirby ACJ in R v Skinner (1994) 72 A CrimR 151 at 154. In R v Hudson (unreported) CCA, 30 July 1998 at 3 Sully and Ireland JJ with whom Spigelman CJ agreed, said: "Recognition is also given to the fact that children in a family situation are virtually helpless against sexual attack by the male parent and that children have a right to be protected from sexual molestation within the family and that this can only be achieved by the courts imposing sentences of a salutary nature." 21 Similarly, a child aged 13 or younger is virtually helpless in the family unit when sexually abused by a step-parent. All too often the child is afraid to inform upon the step-parent; see generally R v Bamford (unreported) CCA, 23 July 1991 per Lee CJ at CL at 5. The younger the victim the more serious is the criminality; see R v PWH (unreported) CCA, 20 February 1992. 22 The Crown submitted that the respondent's course of conduct and the repeated nature of the offences made the criminality more serious, see R v Skinner at 151 and that the sentencing Judge gave undue weight to the respondent's ill health. Taking these matters into account, together with the offender's position of trust and the absence of any suggestion of remorse, the sentences imposed were said to be manifestly inadequate. 23 The structure of the remarks on sentence does suggest that the sentencing Judge gave an overly generous discount on account of the respondent's health. The respondent's counsel, in opposing any interference by this Court with the sentences imposed, referred to Dr Singham's medical report and submitted that this Court had accepted that ill health, such as to cause an offender to experience prison substantially more harshly than otherwise, might cause a sentence to be less than otherwise would have been imposed. In R v L (unreported) CCA, 17 June 1996 the Court (Gleeson CJ, Badgery-Parker and Hidden JJ) said at 6: "The fact that an offender suffers from an illness does not necessarily mean that a prison sentence should not be imposed, or that the sentence should be less than the circumstances of the case would otherwise require. It is the responsibility of the executive to provide for the care and treatment of its prisoners: R v Vachalec (1981) 1 NSWLR 351, per Street CJ at 353-4. If a prisoner's condition deteriorates during the course of the sentence such that his or her release ought to be permitted on humanitarian grounds, the executive is empowered to deal with the situation. Section 53 of the Sentencing Act 1989 preserves the Royal prerogative of mercy, and s25A(1) of the Act enables the Offenders' Review Board to grant parole at any time if the prisoner is dying or there are other 'exceptional extenuating circumstances': R v Jones (1993) 70 A Crim R 449, per Carruthers J at 457." 24 Their Honours referred to the judgment of King CJ, frequently cited, in R v Smith (1987) 44 SASR 587 at 589: "The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health, or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health." 25 However, the Court in R v L went on at 8 to say: "Where illness is seen to be relevant to the determination of sentence, its weight must be assessed in the light of all the circumstances of the case. Obviously, one of those circumstances will be the seriousness of the offence. In some cases it might lead to a reduction of the sentence otherwise appropriate, while in others it might justify a disposition other than a custodial sentence." 26 Their Honours quoted from R v Sopher (1993) 70 A Crim R 570 at 573 in which this Court said: "An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health, or shortening of life." 27 In R v L their Honours said that a court cannot determine the bearing which an offender's illness might have upon sentence in the absence of adequate evidence as to the nature and extent of the illness and, where appropriate, its effect upon the conditions of the offender's incarceration. In the present case, the report of Dr Singham barely met these requirements. There was nothing to suggest that the Department of Corrective Services, meeting its responsibilities for the health of prisoners, would not be able to treat adequately the respondent for the conditions from which he suffered. The only comment about the effect of imprisonment made by Dr Singham was its possible contribution to depression. 28 The respondent sought to distinguish the facts in Skinner, but the principles to be applied are the same. Counsel referred to Judicial Commission statistics but acknowledged that these did not assist in the case of multiple offenders. The respondent relied upon what was said in Everett v The Queen (1994) 181 CLR 295 at 299 and submitted that no error was shown in Judge Ford's sentencing. 29 The right of the Crown to appeal against a sentence on the grounds of inadequacy is exceptional. However, where sentences imposed are so inadequate as to indicate error or departure from principle, or depart from accepted sentencing standards, they demonstrate error in point of principle which the Crown is entitled to have this Court correct; see Griffiths v The Queen (1977) 137 CLR 293 at 310; Everett at 300 and R v Barbara (unreported) CCA, 24 February 1997 at 6. The case must be a compelling one before this Court can interfere. It is not sufficient that this Court would itself, in the position of the sentencing Judge, have imposed a more severe sentence. However, sentences outside the permissible range of those the product of a properly exercised sentencing discretion prima facie manifest error; see House v The King (1936) 55 CLR 499 at 505. Even so, in the case of a Crown appeal, there remains a residual discretion as to whether the Court will interfere; R v L at 10. 30 In the present case, the seriousness of the offences of which the respondent was convicted in the circumstances of the case to which I have referred have led me to the conclusion that the sentences imposed were so inadequate as to indicate error by his Honour in the sentencing process. His Honour expressly acknowledged that the offences were very serious. It may be that the exercise of discretion went wrong with the determination substantially to reduce the sentences because of the medical evidence. 31 For present purposes, I accept, despite the sketchiness of the evidence, that full time custody for the respondent would be harsher than it would be if he were fully fit. But the mitigating consequence of this must be balanced against the seriousness of the offences. In that balance, in my opinion, the mitigating consequence is slight. His Honour wrongly treated it as "substantial". Quite simply the sentences imposed are well below the range for the offences found and do not reflect the objective seriousness of the offences; R v Dodd (1991) 57 A CrimR 349 at 354. Accordingly, the Crown has demonstrated that this Court may intervene to quash the sentences imposed and re-sentence the respondent. No discretionary matter has been advanced nor am I persuaded there is any which should lead us to refuse to do so. 32 On re-sentencing the respondent filed, without objection, and relied upon two affidavits by Mary Spiers Williams, both affirmed on 7 March 2000. To the first of these affidavits are annexed references addressed to the Court from members of the respondent's family which I have read and which reflect the deponents' opinions that he is an honest and hard working family man who has done his best to provide a happy and stable home for his wife and children. These references were given in the context that the respondent continues to maintain his innocence of all the offences charged. 33 The second affidavit annexes medical records from the Corrections Health Service. From these it can be seen that in November 1999 on more than one occasion the respondent attended on the Health Service and reported headaches. Our attention was also drawn to reports relating to pain in his hip region which he experienced over ten weeks, back pain which was slowly getting worse and pain at the back of his head. These matters were complained of in August and September 1999. A medical certificate in November 1999 refers to disc and back trouble and recommends a lower bunk on the ground floor. In September 1999, the respondent was referred to a radiology consultant for a CT scan of the "LS spine". This material shows a continuation of his chronic back problem, which is not surprising, but does not indicate any problem in obtaining appropriate treatment and medication. 34 In cases of this kind, little leniency can be expected for previous good character. The respondent has no other convictions. There remains no sign of contrition. No special circumstance was found by the sentencing Judge or has been advanced to support any reduction of the minimum sentence. In re-sentencing, this Court must, and I do, take into account what the High Court in Everett at 299 referred to as the jeopardy into which the respondent is put for the second time in regard to his freedom beyond the sentence imposed. The hardship of this uncertainty points the Court towards the bottom end of the appropriate range of sentence. The sentences imposed must reflect the total criminality of the offences for which the respondent has been convicted. As I have said, I accept that full time custody will be harsher for the respondent than if he were fully fit and I take this into account. Bearing all these matters in mind, I propose the following orders:
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.
R
BJW
(1987) 44 SASR 587
(1994) 181 CLR 295
(1977) 137 CLR 293
(1936) 55 CLR 499
(1981) 2 NSWLR 640
(1981) 1 NSWLR 351