228 CLR 357
Mills v R [2017] NSWCCA 87
Mulato v Regina [2006] NSWCCA 282
Muldrock v The Queen [2011] HCA 39
Source
Original judgment source is linked above.
Catchwords
256 CLR 346
Dinsdale v The Queen [2000] HCA 54228 CLR 357
Mills v R [2017] NSWCCA 87
Mulato v Regina [2006] NSWCCA 282
Muldrock v The Queen [2011] HCA 39
Judgment (2 paragraphs)
[1]
Judgment
HOEBEN CJ at CL:
Offences and sentence
On 24 February 2017 the respondent was sentenced by Williams SC DCJ in respect of the following offences:
Sequence 7 - On 31 December 2014 unauthorised possession of a pistol, contrary to s 7(1) of the Firearms Act 1996 (NSW) for which the maximum penalty is imprisonment for 14 years and which carried a standard non-parole period of 3 years.
Sequences 9, 10, 11, 12 and 14 - Between 29 August 2014 and 31 December 2014 five offences of sexual intercourse with a child under the age of 10 years (3 years), contrary to s 66A(1) of the Crimes Act 1900 (NSW) for which the maximum penalty was imprisonment for 25 years and which carries a standard non-parole period of 15 years.
Sequence 15 - Between 1 January 2014 and 31 December 2014, use child under 14 years to make child abuse material, contrary to s 91G(1)(a) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 14 years.
The indicative sentences proposed by his Honour in respect of those offences (after a 25 per cent reduction for the respondent's early pleas of guilty) were:
Sequence 7 - Imprisonment for 1 year and 3 months with a non-parole period of 6 months.
Sequence 9 - Imprisonment for 6 years and 9 months with a non-parole period of 4 years.
Sequence 10 - Imprisonment for 6 years and 9 months with a non-parole period of 4 years.
Sequence 11 - Imprisonment for 6 years and 9 months with a non-parole period of 4 years.
Sequence 12 - Imprisonment for 6 years and 9 months with a non-parole period of 4 years.
Sequence 14 - Imprisonment for 6 years and 9 months with a non-parole period of 4 years.
Sequence 15 - Imprisonment for 4 years.
The aggregate sentence imposed by his Honour was imprisonment for 9 years with a non-parole period of 5 years and 9 months, commencing 7 May 2015 and expiring 6 February 2021 with the balance of term expiring 6 May 2024.
The Director of Public Prosecutions (DPP) has appealed from that aggregate sentence pursuant to s 5D of the Criminal Appeal Act 1912 (NSW). Notice of Appeal was served upon the respondent on 5 April 2017.
The DPP relies upon a single ground of appeal particularised as follows:
Ground 1 - The sentence imposed is manifestly inadequate.
i. The sentencing judge erred in his assessment of the objective seriousness of the s 66A(1) offences by taking into account the absence of matters which would have made the offending more serious.
ii. The sentencing judge erred in his assessment of the objective seriousness of the s 66A(1) offences by failing properly to take into account the victim's very young age, vulnerability and the inevitable psychological damage arising out of those offences.
iii. The sentencing judge failed to take into account in relation to sequences 12 and 14 that the offences were committed in the home of the victim.
iv. The sentencing judge erred in his approach to the question of totality.
FACTUAL BACKGROUND
The victim in relation to the s 66A(1) and s 91G(1)(a) offences was born in 2011, was aged 3 at the time of the offences and was the niece of the respondent.
From October 2013 until 2 December 2014 the victim lived with her parents and a younger sister at addresses in Collaroy and Mona Vale. Approximately every three weeks during that time, the victim's grandmother (the respondent's mother) would pick her up and take her to stay at her house. The respondent resided in that house. On 2 December 2014 the victim and her family moved into that house for what was supposed to be a one or two week stay but continued until March 2015.
On 31 December 2014 police executed a search warrant at the respondent's home and located an imitation six-chamber revolver in a safe in his bedroom. The revolver imitated a firearm for which a licence was required and the respondent was not licensed to possess that imitation firearm. These were the facts relating to the offence in Sequence 7.
Also during the execution of the search warrant, police found a Samsung mobile phone and card belonging to the respondent. This had been concealed with a number of other items in a storage area underneath the main part of the house which was accessible from the flat occupied by the respondent. The phone was fully charged and had recently been used by him.
On examining the phone police identified numerous images of the victim, many of which were taken in social settings and readily identifiable as having been taken at the respondent's home. In addition to the aforementioned photographs of the victim, police found photographs of the victim being sexually assaulted by the respondent. Each of those portrayed a separate sexual assault perpetrated by the respondent on the victim and each was ranked at category 4 on the Child Exploitation Tracking Scheme Scale. (Category 4 involves penetrative sexual activity involving children, or both children and adults). Each of six series of photographs was taken by the respondent as he sexually assaulted the victim. Those were the facts which supported the charge which was Sequence 15.
The five counts under s 66A(1) related to the following dates.
On Friday, 29 August a series of three photographs were taken from above looking down at the victim and depicted the respondent's erect penis in the victim's mouth. They were taken in the downstairs flat.
On 8 November 2014 two photographs in the same circumstances were taken in the upstairs dining room.
On 3 December 2014 four photographs were taken in the same circumstances but with the victim naked. On the same day there was a series of four photographs taken from above looking down on the victim with the respondent's penis in her mouth. She was wearing a pink T-shirt.
On 4 December 2014 there was a series of seven photographs taken from above looking down on the victim. Six of them showed the respondent's penis in her mouth and a further photograph showed his penis in front of her face. These photographs were taken in the downstairs flat.
Between 1 January and 31 December 2014 there was a series of five photographs taken from above looking down on the victim. Three depicted the respondent's penis in the victim's mouth and a further two photographs showed the respondent's penis in front of the face of the victim.
Those were the facts which gave rise to the charges in Sequences 9, 10, 11, 12 and 14.
On the morning of Thursday, 7 May, the victim was interviewed by police from the Child Abuse Squad. The victim said that the respondent liked playing games with her. He used a black phone to take pictures of her. "He takes his shirt off, his pants off and his undies off". He was at her "grandma's house" and she saw him naked and "he takes my clothes off".
On the same day the respondent participated in a recorded interview in which he made admissions to the offences. When asked why at the time of the execution of the warrant he had hidden the mobile phone in the storage area, he said that he panicked because he knew that the police were coming.
In his ERISP the respondent said that the firearm was a replica handgun that belonged to his late father. It had been under his bed for a few months and he was aware that he should not have had it.
When asked about his relationship with the victim, he said "Well I love her. She's my little niece. We would be quite close, the same way I love her mother and my brother." When asked about the offending, he said "I'm not going to say it didn't happen, it must have. I don't think she'd make up stuff like that. If she said it happened, it must have happened. I have no recollection of it happening. I want to get some help."
The respondent said on a number of occasions words to the effect that he did not remember the incidents. When asked whether he remembered the act of an erect male penis being placed in the victim's mouth, he said "I don't remember the act of actually doing it, but I know it was done because you have a photo of it." He agreed that it would take some time and preparation to perform acts such as this on a small child. He said that although he had no recollection of the actual acts, looking back on it he felt shame, disgust and humiliation on behalf of his family.
He was asked about his previous offending and why he did not get help then. The respondent said "From memory we tried. There was no-one. No-one could point us in the direction that we wanted." He said "I needed professional help, I know I've got a problem." He recognised that his behaviour hurt people. He accepted that it might not be bruising or scratching but deep down it hurt people.
The previous offending, to which reference was made, was an offence of possession of child pornography committed in mid-2005 for which the respondent was sentenced in the Local Court to imprisonment for 10 months with a non-parole period of 8 months.
On appeal to the District Court, the sentence was altered to a 10 month suspended sentence under s 12, on condition that he enter into treatment and counselling as set out in the report of a psychologist under the supervision of the Probation and Parole Service.
The facts of the prior offending were before the sentencing judge. Police executed a search warrant on 20 June 2005 and found a computer. The hard-drives on the computer were found to show in excess of a hundred images of pre-pubescent male and female children participating in sexual acts with adult males and females. The children ranged in age from 2 to 12 years old.
There was available to the court a report of Katherine Barrier, psychologist, which was used in his sentencing in 2005. That report recorded assertions by him on that occasion that he did not know why he had the child pornography or why he was looking at it. He told the psychologist that he appreciated and understood the illegal nature of his behaviour, and that children were not mature enough to make decisions properly, and that he understood that children were manipulated or coerced into taking part.
A pre-sentence report of 10 July 2008, which was before both the Local Court and the District Court, recorded that the respondent claimed periodic amnesia in relation to his offending, which did not appear to have improved in the three years since his arrest.
Sentence proceedings
The respondent was aged 42 at the time of offending and 45 at the time of sentencing. He did not give evidence in the sentence proceedings. The sentencing judge acknowledged that untested assertions by the respondent in reports, must be approached with a deal of caution. His Honour found, however, that there was nothing to indicate any level of dissembling or inaccuracy in the histories recorded in the reports. Accordingly, his Honour proceeded on the basis that the histories were accurate. His Honour noted that the Crown did not submit that he should not "at least to some extent" rely upon the histories there recorded.
The report to which the sentencing judge referred was that of a psychiatrist, Dr Allnutt, dated 29 August 2016. His Honour summarised the contents of that report as follows. Dr Allnutt said that the offender did not know what his motivation was for the offending, that he wanted to find this out, that he needed people to help him find out and that he needed a mental health professional to help him. The respondent denied any memory of the offences and said that he could not explain this. He had not looked at the photographs since the offending. He described feeling depressed and anxious, symptoms which had emerged since his imprisonment.
His only social support was his mother. He had no support from friends in the community. While in custody, he recognised that his employment prospects would be very difficult. He described a number of sexual relationships comprising five or six sexual partners, one male and four female. He denied any major health problems, or any family history of mental illness. He did a trade course in electronics for a number of years and had employment with Australia Post and other employers. The longest period of employment was for about eight years with Australia Post until 2005. He had last worked in 2013 at a call centre.
Dr Allnutt could find no evidence of psychosis and did not make any diagnosis of a personality disorder. He recommended treatment by cognitive behavioural therapy and trialling antidepressant medication. He adverted to the consideration that needed to be given to anti-libidinal medication. Dr Allnutt diagnosed a paedophilic disorder because there was evidence of sexual activity involving a prepubescent child occurring over a period of a year, and it was likely that this disorder made a significant contribution to his offending behaviour, along with feelings of loneliness and depression.
Dr Allnutt discussed the possibility of chemical castration with the respondent. He explained the side effects and indicated that with a diagnosis of paedophilic disorder, he was eligible for a trial of such medication. Dr Allnutt pointed out that this medicine could not be given in a coercive way by a court order and it raised some ethical concerns which needed to be considered by the treating doctor. The respondent would require regular consultation with a psychiatrist while on that medication.
Dr Allnutt noted a number of factors for and against the risk of recidivism. The factors for recidivism present were identified as psychological coercion, chronicity of offending, diversity of the offending, a lack of self-awareness, paedophilic disorder and problems with intimate relationships and non-intimate relationships. Factors against were no evidence of physical coercion, no escalation of offending, no minimisation and denial of offending, no history of child sexual abuse, no diagnosis of a serious mental illness, no history of substance abuse and no history of suicidal or violent ideation. Dr Allnutt found that by reference to the static 99 predictive tool the respondent was at moderate to low risk of re-offending.
Dr Allnutt noted that the respondent accepted responsibility for having committed the offence and for the offending behaviour and accepted that it was damaging and had negative consequences for the victim. He did so in a tearful manner, recognising the injury and the damage to the victim. Dr Allnutt recommended regular ongoing contact with a forensic psychologist who had expertise in sexual offending, ongoing medication controlled by a psychiatrist by way of anti-libidinal treatment and a sex offender rehabilitation programme, either in custody or in the community.
Dr Allnutt reported that it was relatively common for people who commit offences to report not remembering them, but he was unable to identify any psychiatric condition that would impair the ability to recall. He opined that it was probably related to the distaste which the respondent had about confronting his underlying paedophilic proclivities. This would be adequately addressed in the context of a sex offender rehabilitation programme.
I should note at this point that in the second paragraph of his report of 29 August 2016, Dr Allnutt said:
"As you are aware, I have previously provided you with a report on your client dated 26 October 2015. I also provided a report of 8 August 2016 and have corrected a typing error in that report. This is my final report. The report of 26 October 2016 [sic 2015] should be read in conjunction with that report."
Neither the report of 26 October 2015 nor the report of 8 August 2016 was placed before the sentencing judge.
The sentencing judge noted that sexual abuse within a family was likely to receive more severe punishment because of the necessary vulnerability of the victim. When considering seriousness, an important consideration was that the victim was well under the statutory age of 10 when the offences occurred.
His Honour noted that the principles of totality and accumulation should apply to the sentence imposed and that there should be partial accumulation among the sexual offences and further accumulation for the remaining two offences.
His Honour was not persuaded that there was a significant risk of the applicant re-offending but accepted that there was some risk, although that risk was somewhat ameliorated by the likelihood that there would be treatment available for him while in custody of the kind proposed by Dr Allnutt.
The sentencing judge assessed the firearms offence at below the middle of the range and towards the lower end of the range, given that it involved an imitation pistol.
In relation to the sexual intercourse offences, his Honour found that the relationship between the respondent and the victim which gave rise to a significant breach of trust on his part. He also noted that two of the counts (Sequences 12 and 14) occurred in the home of the victim which was a further matter of aggravation. His Honour noted that the same issues of breach of trust applied to the pornography count, Sequence 15.
His Honour found that there was no evidence of substantial injury to the victim in that there was no evidence that she had any recall of the events. This finding was based on the May 2015 interview of the victim by police when she was aged 4. His Honour accepted that there was no significant record of previous convictions in that a previous conviction did not involve an offence of violence or a violent sexual assault. His Honour found that there was a medium to low risk of the respondent re-offending and that there were reasonable prospects of rehabilitation, provided he underwent the treatment suggested by Dr Allnutt.
The sentencing judge found remorse on the basis of the respondent's early plea of guilty and his assertions to Dr Allnutt that he accepted responsibility for the offending behaviour.
In relation to the objective seriousness of the sexual intercourse offences, his Honour said:
"I accept, that notwithstanding the seriousness of the offences they were slightly, but only slightly, below the middle of the range of objective seriousness for that type of offending bearing in mind the entirety of the facts and circumstances in this case. I make that finding in the light, obviously, of the absence of evidence of matters pointed to by Mr Wilcher including the absence of any degree of force, coercion, threats or pressure, the absence of physical injury, the lack of memory by the victim which suggests that she does not remember the incidents and that does not lead me to do anything by way of speculation as to whether there is likely to be any lasting effect upon her." (Sentence judgment, 14.6)
His Honour followed a similar approach when assessing the objective seriousness of the pornography offence when he said:
"As to the s 91G count, the Crown accepts what was put by Mr Wilcher,
contrasting this case with the facts in Hitchen v R [2010] NSWCCA 77 which
fell at the top end of the range. Mr Wilcher points out that none of those
factors appear in the factual matrix on the single count on the indictment with the exception of the images depicting the fellatio. This is in my view also just below the mid-range of objective seriousness of offending." (Sentence judgment, 14.9-15.1)
In submissions to the sentencing judge, the Crown conceded that a finding of special circumstances was open on the evidence. On that issue, his Honour found special circumstances based on the prospects of rehabilitation and the fact that it was the respondent's first time in custody.
The report of Dr Allnutt
Before considering the Crown appeal, there is a practice issue which needs to be dealt with. As is set out above, Dr Allnutt stated that there was at least one earlier report prepared by him in relation to the respondent and that this report should be read with the report of 29 August 2016 which was before the sentencing judge. In those circumstances, the respondent's legal advisors should have served all the reports of Dr Allnutt on the Crown but have indicated that it was only intended to tender one report. The respondent's legal advisors should have told the judge what they had done. It would then have been a matter for the Crown, if considered appropriate, to object to the tender unless the other reports were also tendered.
What should be avoided is to cherry pick and tender only one report which might be favourable to an offender if there are other reports from the same expert or doctor in existence to different effect. In those circumstances, sentencing judges should reasonably expect to have before them the full and complete opinion of that doctor or expert.
The Crown appeal
In approaching the Crown appeal, I am conscious of the principles applicable. These were usefully summarised in R v Barker [2016] NSWCCA 193 (Hoeben CJ at CL with whom Bathurst CJ and Price J agreed) as follows:
"52 Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a "limiting purpose" for such appeals and, by contrast with the Court's jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is "plainly unjust" by reason of its manifest inadequacy) for the mere "correction of error in the individual sentencing proceedings" Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8).
53 Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is "plainly unjust") the Crown must:
(i) Establish the existence of error(s) by the sentencing judge within one or more of the first four categories referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]);
(ii) Identify the sentencing principle which is engaged by such errors: (R v Tuala at [99]);
(iii) Establish that the sentence under appeal is manifestly inadequate: (Regina v Janceski per Hunt AJA at [25] with whom Spigelman CJ and Howie J agreed).
…
55 Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is "plainly unjust" and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]). Such appeals involve the fifth category of error referred to in House v R."
The Crown submitted that this appeal was brought for the purpose of engaging the discretion of the Court to intervene and set aside the total term and non-parole period of the aggregate sentence because they were each "plainly unjust" being so far below the range of sentences that could justly be imposed consistent with appropriate sentencing standards and so manifestly inadequate as to be likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders who sexually abuse very young children.
In relation to manifest inadequacy generally, the Crown submitted that the total term and non-parole period of the aggregate sentence were manifestly inadequate because of the following:
1. The sentencing judge erred in his assessment of the objective seriousness of the s 66A(1) offences by taking into account the absence of matters which would have made the offending more serious.
2. The sentencing judge erred in his assessment of the objective seriousness of the s 66A(1) offences by failing properly to take into account the victim's young age, vulnerability and the inevitable psychological damage arising out of those offences.
3. The sentencing judge failed to take into account in relation to Sequences 12 and 14 that the offences were committed in the home of the victim.
4. The sentencing judge erred in his approach to the question of totality.
Particular (i).
The Crown submitted that the process of instinctive synthesis to be undertaken by a sentencing judge involved identifying all the factors that were relevant to the sentence and then making a value judgment as to the appropriate sentence in all the circumstances of the case (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [51]; Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [26]). Assessment of the objective gravity of an offence was traditionally an essential element of the sentencing process (R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]). It was an essential element of the process of instinctive synthesis that the sentence imposed was a proportionate sentence which adequately punished an offender (s 3A(a) Crimes (Sentencing Procedure) Act 1999 (NSW); Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [46] per Johnson J).
The Crown accepted that a finding of objective seriousness was a discretionary determination and that it was not the function of this Court to substitute its own view (Mulato v Regina [2006] NSWCCA 282 at [37] and [46]). The Crown submitted, however, that the characterisation of the offences contrary to s 66A(1) as "slightly, below the middle of the range" was not open to the sentencing judge and that in undertaking an assessment of the objective seriousness of the offences, his Honour erred.
The Crown submitted that his Honour erred when taking into account the absence of physical injury in assessing the objective seriousness of the s 66A(1) offences. This emerged from the following analysis.
The offences were committed during 2014. From 1 January 2009 to 28 January 2015, s 66A(2) provided:
"(2) Child under 10 - aggravated offence
Any person who has sexual intercourse with another person who is under the age of 10 years in circumstances of aggravation is guilty of an offence.
Maximum penalty: imprisonment for life."
Subsection 66A(3), as it was at the time of the offending, defined the various circumstances of aggravation which included the infliction of actual bodily harm upon the victim. Accordingly, the absence of physical injury to the victim was not a matter to be taken into account in the assessment of the objective gravity of an offence contrary to s 66A(1). If actual bodily harm was occasioned to the victim then the respondent would have been liable to be charged with and punished for, an offence contrary to s 66A(2) for which the maximum penalty was imprisonment for life.
The Crown submitted that the absence of force or coercion was also a matter which did not reduce the respondent's criminality. In that regard, the Crown relied upon the observation by McCallum J (with whom Gleeson JA and Fullerton J agreed) in R v BA [2014] NSWCCA 148 at [33]:
"33 … 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."
The respondent had no answer to those propositions and adhered to the erroneous position that the absence of more serious aspects of the offending were matters which could be properly taken into account by way of mitigation.
Consideration
The two propositions relied upon by the Crown are indicative of error on his Honour's part. It was not appropriate for his Honour to take into account the absence of actual bodily harm and the absence of force and coercion as matters in mitigation of the offending so as to impact directly upon an assessment of objective seriousness.
If there were any doubt on that issue, it was clarified in such decisions as Bravo v R [2015] NSWCCA 302 and Mills v R [2017] NSWCCA 87).
In Bravo v R, R A Hulme J (Beazley P and Johnson J agreeing) said:
"45 … Similarly, the absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, "the offence is less serious because it could have been more serious". As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452:
"[3] It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse.""
In Mills v R, R A Hulme J (Leeming JA and Beech-Jones agreeing), in addition to referring again to Grove J's statement in Saddler, said:
"57 Much of the applicant's argument under this ground was devoted to pointing out matters which were absent that, if present, might have made the offence more serious than it was. However, because a matter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established (Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], "In plain language, it does not make what has been done by an offender less serious because it could have been worse."
Particular (i) upon which the Crown relied has been made out.
Particular (ii)
The Crown submitted that while the sentencing judge was clearly aware of the victim's age, it was not clear how his Honour took this factor into account. The Crown submitted that although his Honour referred to it as a significant matter, when he came to deal with issues such as lack of recollection of the offending and psychological harm, he appeared to take it into account as a mitigating factor.
To substantiate that submission, the Crown relied particularly upon his Honour's list of mitigating factors which included that "… there was no evidence of substantial injury and there was no evidence that the victim has any recall of events" (Sentence judgment, 12.9) and the quotation referred to at [45] hereof where his Honour again referred to the "absence of physical injury, the lack of memory by the victim … does not lead me to do anything by way of speculation as to whether there is likely to be any lasting effect upon her", as matters to be taken in mitigation.
The Crown submitted that his Honour was in error in treating those matters as mitigating factors. The Crown submitted that the victim's responses to the police may have indicated a lack of memory of the offending, but were equally consistent with her limited capacity to articulate answers. It was also clear from the police interview that she did remember quite a lot which included the use of the phone to take photos, removing clothes and that the respondent had exposed the "part that he goes to the toilet with when he does a wee". The Crown submitted that it was simply not possible to say with any certitude that the victim did not remember the offending or that such recollections would not occur later in life.
The Crown submitted that the victim's tender age and inability to remember or articulate what had occurred should not have been used in any way to the respondent's advantage. It was an error for his Honour to have done so.
The Crown submitted that his Honour erred in requiring the Crown to adduce some evidence of psychological damage to the victim before a finding could be made that such damage had been suffered. The Crown submitted that because psychological harm in situations such as these may not become apparent for many years, it can be accepted without specific proof that psychological damage of some kind was likely.
The respondent adhered to the submissions which he had made to the trial judge that the victim's inability to remember and lack of any present psychological harm were matters which his Honour could take into account by way of mitigation of the offending.
The respondent relied upon what he said was a significant concession on this issue by the Crown. The exchange upon which the respondent relied was:
"CROWN: … and her tender age at the time of the commission of these offences, in my submission, substantially adds to the weight that your Honour would need to place on general deterrence. And the additional weight your Honour would need to place on general deterrence, in the Crown submission, would far outweigh any degree of mitigating that the offending would otherwise give rise to, in the light of the fact that there is no ongoing substantial harm. And I say no harm is now identified. It is unclear whether or not and to what degree there will be ongoing harm …
HIS HONOUR: Well, you keep saying that, but to invite me to do so is speculation in the extreme." (24.2.2017, T.7.20-.33)
The respondent's position was that:
1. There was no evidence of any psychological harm.
2. The Crown conceded that there was no identifiable harm as of the date of sentence.
Consideration
As with Particular (i), the taking into account by the sentencing judge of the apparent absence of memory and that there was no evidence at the time of sentencing of psychological harm as mitigating matters, involved error. Such an error was identified by Price J in R v JP [2015] NSWCCA 267 in an appeal involving an offence committed against a six week old baby:
"79 When offences of this kind are considered, it is often submitted on behalf of an offender that as the young child would not have been in the position to understand or even appreciate what occurred, there could be no evidence of psychological harm. Indeed, the primary judge made such a finding: (ROS 5). I do not understand how the fact that a child was unknowing can be seen to reduce the objective seriousness of the offence. An unknowing child is a vulnerable victim, who is unable to take any action to protect him or her self from abuse of any kind …"
In relation to psychological harm, the suggested concession by the Crown was more apparent than real. What the Crown was conceding in the oral exchanges on sentence was that he was unable to identify any actual psychological harm at the time of the sentence proceedings, but it was unclear and he was unable to say to what extent there might be ongoing psychological harm in the future. That was a reasonable submission and did not merit the peremptory observation by the sentencing judge that to make such a finding would involve "speculation in the extreme".
In relation to future psychological harm, the Crown referred the sentencing judge to R v Gavel [2014] NSWCCA 56 and set out in its written submissions paragraphs [110]-[112] of that decision. Those and other observations by the Court in that case (Leeming JA, Johnson and Hall JJ) are apposite to this issue:
"106 This Court has stated that sentencing Judges are entitled to proceed on the basis that serious sexual assaults can be expected to have adverse psychological consequences and that, as a result, care needs to be taken to avoid double counting with regard to the aggravating feature of substantial emotional harm: Stewart v R [2012] NSWCCA 183 at [61].
107 In the area of sex offences committed against young children, s.66A(2) provides for a very substantial penalty. It may be taken that a factor which contributes to the setting of this penalty (and the standard non-parole period) is the expectation that substantial harm will result to a young child victim of sex offences.
…
110 This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].
111 This factor no doubt contributes to the setting of the heaviest maximum penalty known to the criminal law for s.66A(2) offences, accompanied by a standard non-parole period of 15 years. It is important that sentences for s.66A(2) offences reflect this grave element implicit in the offence itself."
The effect of the analysis in R v Gavel is that built into the high maximum sentence for offences under s 66A is the likelihood of future psychological harm. It also allows for a finding of actual psychological harm if there is evidence of that before the court. Here the possibility of future psychological harm could not be excluded but there was no evidence of it. What is clear, however, for the reasons already set out, was that the absence of evidence of future psychological harm could not be used as a mitigating factor to benefit the respondent. The fallacy in this part of the sentence judgment is to equate no evidence of present psychological harm with evidence of no psychological harm.
Particular (iii)
The respondent submitted that the sentencing judge specified the same indicative sentences for each of the offences contrary to s 66A(1) despite the fact that the offences, the subject of Sequences 12 and 14, were committed at a time when the victim and her family were residing with the respondent. The Crown submitted that it was therefore an aggravating feature of those offences that they were committed in the victim's home (s 21A(2)(eb) Crimes (Sentencing Procedure) Act. The Crown submitted that had that matter been properly taken into account, there should have been some differentiation in the indicative sentences to indicate an increased sentence in respect of the offences in Sequences 12 and 14.
Although the appeal is against the aggregate sentence, the Crown submitted that this error in the indicative sentences was demonstrative of an error on the part of the sentencing judge in the reasoning process leading up to the formulation of the aggregate sentence.
The respondent accepted that an erroneous approach to an indicative sentence may well reveal error in the aggregate sentence. He submitted, however, that any mistake in an indicative sentence (which he did not concede in this matter) did not automatically result in the sentencing discretion miscarrying.
The respondent submitted that while it was conceded that two of the s 66A(1) offences occurred while the victim was residing in the same home as the respondent, all of the offences occurred at that location. Otherwise there was nothing by way of a victim impact statement or other evidence to indicate that any of those offences was objectively more serious than another.
The respondent submitted that even if there were demonstrable error on the part of the sentencing judge in pronouncing the same indicative sentence for each of the five sexual intercourse offences, the Crown had not demonstrated how that error has led to the aggregate sentence being manifestly inadequate.
Consideration
There is considerable force in the respondent's submissions on this issue. The asserted aggravating factor only arose as a result of the fortuitous fact that the victim's family moved into the respondent's home for a short period of time. In those circumstances, I am not persuaded that error has occurred. To take into account that two offences were committed in the home of the victim, it would have been necessary to provide some explanation for how this was an aggravating factor.
Bathurst CJ explained in Jonson v R [2016] NSWCCA 286 that there can be offences which occur in the home which do not amount to an aggravating factor in accordance with s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act. There the Chief Justice said:
"52 … The fact that s 21A(2)(eb) can extend beyond offences committed by an intruder does not mean that in all cases the fact that the offence occurred in a home will be an aggravating factor. It is necessary for the Court to conclude that, having regard to ordinary sentencing principles, it actually aggravates the offence in question: Gore v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353 at [29]."
In the present case, and particularly having regard to the tender age of the victim, I cannot see how two of the offences being committed at a time when she was living at, rather than visiting, the home made them any more serious than the other offences. This particular has not been made out.
Particular (iv)
The Crown submitted that even though the indicative sentences were not amenable to appeal, they were relevant as indicating the reasoning process of the sentencing judge. The Crown submitted that although the indicative sentences were too low, even if one accepted that they were appropriate, it was clear from the aggregate sentence that the principle of totality was not observed in that there was clearly minimal accumulation. The Crown submitted that the final aggregation of the indicative sentences as reflected in the aggregate sentence, simply did not appropriately take into account the criminality involved in the offending.
The Crown submitted that the maximum penalty of imprisonment of 25 years and the standard non-parole period of 15 years were important legislative guideposts in respect of the s 66A(1) offences. The Crown submitted that it was difficult to see how these guideposts were taken account of when one looked at the aggregate sentence even in the light of the indicative sentences which, in the Crown's submission, were themselves inadequate.
In support of that submission the Crown relied upon the observation of the Court (Payne JA, Price and Garling JJ) in R v ND [2016] NSWCCA 103 where their Honours said:
"38 The commencement point of addressing this appeal is to identify the seriousness of an offence against s 66A of the Crimes Act. The legislation conveyed that degree of seriousness by fixing a maximum term of imprisonment of 25 years and a standard non-parole period of 15 years.
39 The reasons for this are clear: the age of a victim, which the Crown has to prove beyond reasonable doubt as being under 10, demonstrates in and of itself, the vulnerability of the victim to offences of this kind. Further, the likelihood that such a young person would be able to resist an adult is very low. As well, Courts have acknowledged the long-term psychological effects that such conduct can have upon a child. All of these features combine to demonstrate why the legislature and the Courts regard this offence as very serious."
The Crown submitted that the inadequacy of the aggregate sentence was further demonstrated by its failure to appropriately reflect the principles of general deterrence, denunciation and protection of the community which are principles of sentencing which are particularly relevant in cases involving child sexual abuse. On that issue, the Crown relied on the observation of Hoeben CJ at CL (with whom Harrison and R A Hulme JJ agreed) in EG v R [2015] NSWCCA 21:
"42 General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment. …
43 … There is a need to denounce the actions of those who would prey on vulnerable children and who intentionally molest them. …"
The Crown identified the following features which indicated that the aggregate sentence was manifestly inadequate and failed to acknowledge the principle of totality and proportionality.
1. The victim was aged 3 which was well below the statutory age of 10 years for a s 66A(1) offence and well below the statutory age of 14 years for the s 91G(1)(a) offence.
2. The victim's age meant that she was particularly vulnerable.
3. The respondent was the uncle of the victim and grossly abused his position of trust.
4. The respondent was to be sentenced for five offences in contravention of s 66A(1). The offences were committed on five separate dates and spanned a period of at least three months.
5. The abuse of the victim would have continued indefinitely except for the intervention of police.
6. The s 91G(1)(a) offence was objectively very serious as it involved a three year old girl, on occasions naked, being subjected to fellatio. Although there was some overlap of criminality between this offence and the s 66A(1) offences, a significant degree of accumulation was required.
7. The respondent had a prior conviction for an offence in similar terms to the s 91G offence.
The Crown submitted that there was nothing in the respondent's subjective case that entitled him to any significant amelioration of penalty and that the matters which his Honour had taken into account by way of mitigation were not in fact mitigating features for the reasons already indicated. The respondent's prior conviction for possessing child pornography disentitled him to any leniency which might have been extended to a first time offender and meant that personal deterrence had an important role to play in his sentencing.
The respondent's submission was that his Honour had considered the issues of general deterrence, totality and the guideposts provided by the maximum penalty for the s 66A(1) and other offences, together with the standard non-parole periods which also applied because he had referred specifically to those matters.
Consideration
It is true that the sentencing judge did refer to those matters, albeit merely as factors to be considered. The respondent's submission, however, does not answer the substance of the Crown's complaint, i.e. that although his Honour acknowledged the importance of those matters, the practical effect of the aggregate sentence imposed was that he could not have properly taken those matters into account. I agree. In particular, his Honour appears to have failed to appreciate that the objective criminality in five offences under s 66A(1) was far more serious than that involved in a single offence of that kind and that each successive offence increased the likelihood of sexualisation of the victim with resulting serious psychological damage. This particular has been made out.
Conclusion
The Crown has succeeded in establishing error on the part of his Honour in three of the Particulars which it identified. Those particulars, however, were provided under the umbrella of a single ground of appeal - that the sentence imposed was manifestly inadequate. As the High Court has said on many occasions, questions of manifest inadequacy require the party advancing that complaint to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321; Markarian v The Queen).
Moreover, a claim of manifest inadequacy is a conclusion and does not depend on the establishment of specific error. In this case, however, specific error has been established in his Honour's reasoning process leading to his assessment of the objective seriousness of the offences under s 66A(1). Error has also been identified in his Honour's approach to totality and in particular, the extent to which the indicative sentences should have been accumulated so as to allow an appropriate aggregate sentence. As Adamson J (with whom Basten JA and R A Hulme J agreed) said in Harris v R [2015] NSWCCA 81 where there is in substance only one ground of appeal, manifest inadequacy, "identification of specific error may assist to explain why, if it be so, a sentence is manifestly inadequate". That is the situation here.
Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice. Inadequate sentencing gives rise to a sense of injustice not only in those who are the victims of the crimes in question, but also in the general public and is likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crime. For the reasons outlined by the Crown in support of Particular (iv) the aggregate sentence does not reflect the objective criminality of the offending and is manifestly inadequate. It is so far below an appropriate range for this kind of offending that this ground has been made out. The inadequacy is such that the sentence is "plainly unjust" and thereby likely to undermine public confidence in the proper administration of criminal justice if it is allowed to stand.
Accordingly, the only impediment to resentencing the respondent is the residual discretion. On that issue, the Crown carries the burden of persuading the Court that the residual discretion should not be exercised in favour of the respondent (CMB v Attorney-General for the State of New South Wales [2015] HCA 9; 256 CLR 346).
On this issue, the following matters are relevant. The imposition of a manifestly inadequate sentence was not caused or perpetuated by any conduct on the part of the Crown. There was no delay in the institution of the Crown appeal or the service of the Notice of Appeal. No post trial material has been placed before the Court which is relevant to the exercise of the residual discretion. There are no health or rehabilitation considerations which might be compromised if this Court should intervene to resentence the respondent.
For the reasons set out above, the aggregate sentence did not reflect the criminality encompassed by the respondent's offending and has the capacity to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders. It is therefore not appropriate for this Court to exercise its discretion to refrain from resentencing the respondent.
Resentence
The only findings of fact of the sentencing judge which were challenged in the appeal were those relating to matters which he could properly take into account by way of mitigation of the offending. Otherwise, his findings of fact were not challenged and I propose to rely upon them in resentencing.
I would assess the objective seriousness of the s 66A(1) offences as midrange for offences of this kind. For the reasons set out above, the moral culpability of the respondent was substantial and his subjective case was not particularly strong. Aside from the early pleas of guilty, there was little by way of mitigation to be taken into account.
His Honour made a finding of special circumstances based on this being the first time that the respondent has been incarcerated and to allow for rehabilitation based on the recommendations of Dr Allnutt. The Crown conceded in submissions on sentence that a finding of special circumstances, based on those considerations, was open. While I am of the opinion that the matters relied upon by his Honour provide a weak basis for a finding of special circumstances, I am to some extent bound by the concession of the Crown and accordingly, I am prepared to make a finding of special circumstances in my independent exercise of the sentencing discretion.
Having allowed 25 per cent for the utilitarian value of the pleas of guilty, I propose the following indicative sentences:
Sequence 7 - Imprisonment with a non-parole period of 9 months and a total sentence of 1 year and 6 months.
Sequence 9 - Imprisonment with a non-parole period of 5 years and a total sentence of 8 years and 3 months.
Sequence 10 - Imprisonment with a non-parole period of 5 years and a total sentence of 8 years and 3 months.
Sequence 11 - Imprisonment with a non-parole period of 5 years and a total sentence of 8 years and 3 months.
Sequence 12 - Imprisonment with a non-parole period of 5 years and a total sentence of 8 years and 3 months.
Sequence 14 - Imprisonment with a non-parole period of 5 years and a total sentence of 8 years and 3 months.
Sequence 15 - Imprisonment for 4 years and 6 months.
The aggregate sentence which I would impose is imprisonment with a non-parole period of 8 years and a head sentence of 12 years.
The orders which I propose are:
1. Crown appeal allowed.
2. The sentence imposed by Williams SC DCJ on 24 February 2017 is quashed.
3. In lieu thereof the respondent is sentenced to imprisonment for 12 years with a non-parole period of 8 years. The sentence is to date from 7 May 2015. The non-parole period will expire on 6 May 2023 whereupon the respondent will become eligible for release on parole. The total term will expire on 6 May 2027.
R A HULME J: I agree with Hoeben CJ at CL.
WILSON J: I agree with Hoeben CJ at CL.
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Decision last updated: 05 July 2017