R v D.K.M

LOWER COURT District Court JURISDICTION : LOWER COURT 01/31/0026 FILE NUMBER(S) : LOWER COURT Coolahan DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60424/03

BARR J NEWMAN AJ

Tuesday, 9 December 2003 R v DKM Judgment 1 BARR J: The applicant, to whom I shall refer as DKM, seeks leave to appeal against sentences imposed in the District Court. The applicant has a daughter, whom I shall simply call the complainant. She was born on 7 August 1967. Early in 2000 the applicant was charged with having committed a number of sexual offences against the complainant. By an arrangement made in the Local Court the applicant pleaded guilty to three of them. The prosecution offered no evidence on the remaining ones, which were dismissed, and the applicant was committed to the District Court for sentence.

2 The offences were as follows: 1. Between 1 October and 30 December 1979 carnally knowing the complainant, who was then above the age of ten years and under the age of seventeen years, namely twelve years, and who was his daughter. 2. Carnally knowing the complainant between 7 August and 30 October 1982 when she was fifteen years old; and 3. Between 7 August and 30 September 1984 having sexual intercourse with the complainant without her consent, knowing that she was not consenting.

3 The maximum sentences for the first two counts were eight years' imprisonment respectively and for the third count seven years' imprisonment.

4 On 2 May 2001 Coolahan DCJ sentenced the applicant on each count to imprisonment for four years and six months with a non-parole period of three years. The sentence on the first count was fixed to commence on 14 April 2001, the second on 14 April 2003 and the third on 14 April 2004. This partial accumulation of the sentences produced an effective head sentence of seven years and six months and an effective non-parole period of six years. The whole of the parole period for the first count and two- thirds of that for the second count were subsumed by the non-parole periods of the succeeding sentences.

5 There is a single ground of appeal, namely that his Honour found that special circumstances existed justifying an adjustment of the statutory ratio between parole and non-parole periods, yet failed to put that finding into effect. The components of the resulting sentences were a non-parole period of eighty per cent and a parole period of twenty per cent.

6 In a careful and detailed judgment his Honour referred to the statutory proportions in the following words: Mr Booth (defence counsel) submitted that there was a need to monitor and supervise the offender's ongoing rehabilitation. This may be the case but, in my view, again this does not provide a reason for any significant variation in the otherwise appropriate ratio.

Mr Booth drew my attention to the offender's medical conditions, his age, the fact that he will almost certainly be serving his sentence in protection and that in all probability he will find custody very onerous because of those factors. I think that these factors, along with the fact that it will be the first time that the offender has been in prison, would justify a finding of special circumstances but I do not think that there should be any great reduction from the statutory norm and it must always be borne in mind that the aggregate non-parole period must reflect the objective seriousness of the offences. I am of the view that the non-parole period in each case should be one of three years; that is to say, two thirds of the overall sentences rather than three quarters. 7 Having imposed the sentences his Honour said this: I direct that the offender be eligible to be released on parole on 13 April 2007. The parole periods exceed one third of the non-parole periods as I have found that there are special circumstances as referred to in my remarks on sentence.

8 It was submitted in this court that the application of the usual ratio would, for the effective head sentence, have resulted in a non-parole period of five years and seven months. The remarks extracted above showed an intention to impose a lesser effective non-parole period. The court ought therefore to interfere with the sentences and substitute sentences which produced an effective non-parole period of five years.

9 A sentencing judge who expresses a finding of special circumstances in the context of s 44 Crimes (Sentencing Procedure) Act intends to impose a sentence the parole period of which will exceed twenty-five per cent of the head sentence. Where the accumulation of sentences produces a conglomerate sentence I would ordinarily expect the sentencing judge who expresses such a finding to be intending, subject to any statement to the contrary, to fashion an effective parole period which exceeds twenty-five per cent of the head sentence. 10 There are two other relevant facts. Although there is no barrier to the imposition of a sentence incorporating a parole period less than twenty-five per cent of its total length - R v Simpson (2001) 53 NSWLR 704 - where sentences are being accumulated or partly accumulated it is appropriate for a sentencing judge to consider (and if so say so) whether the accumulation itself constitutes a circumstance justifying an adjustment of the non-parole period portions of at least the last sentence in time. Otherwise, if the components of that sentence are left in their prima facie statutory relationship the effective parole period will be less than twenty-five per cent of the effective head sentence. His Honour did not consider that the accumulation itself justified any adjustment, otherwise he would have said so.

11 The second matter is one on which his Honour took trouble to articulate, namely the need for the aggregate non-parole period to give effect to the objective seriousness of the offences. This requires a consideration of the facts of the case.

12 On the occasion of the first count the applicant was alone at home with the complainant, who was then twelve years old. He took her by the hand and invited her to come and lie down. She knew from similar things that had happened to her what the applicant wanted. She ran out of the house and down the street but the applicant ran after her and caught her. He took her into his bedroom, forcibly removed her clothing, took off his own and placed her on the bed. He had full penile-vaginal sexual intercourse with her and ejaculated within her. He committed the act of intercourse in a violent and rough manner, apparently because he was angry that she had run away.

13 On the second occasion the complainant knew by the applicant's demeanour, that is to say, by the manner in which his breathing changed, that he wanted to have intercourse with her. Knowing what was going to happen she cried and pleaded with him. She told him that she was a Christian and begged him not to do it. He took her into the bedroom, became angry with her and told her to take off her clothes. She refused and he removed them forcibly. He forced her onto the bed, upon which he had placed a towel in readiness. He had intercourse with her and ejaculated onto the towel. The complainant was fifteen years old.

14 The circumstances of the third offence were not remarkably different. The complainant was seventeen years old.

15 His Honour had the benefit of a long and detailed statement of the complainant. She described the offences the subject of this application as well as many other instances of sexual misconduct by the applicant towards her. Some of them had formed the basis of the charges that were not proceeded with in the Local Court. Some were not the subject of any charge. His Honour was careful not to be influenced by the applicant's assumed criminality in any other matter in fixing the sentences appealed from. His Honour used the circumstances, as he was entitled to, to explain the background against which the three offences were committed and to explain how and why the complainant knew what was happening and acted as she did.

16 The complainant's present husband made a statement as well. So did a consultant psychologist, Ms Julie Briggs, which was used as a Victim Impact Statement. It comprised a statement of a history given by the complainant about the effects upon her of the activities of the applicant, a record of the administration of psychological tests and an opinion about the long term effects on the complainant of the criminal activity of the applicant.

17 Ms Briggs' report stated that the applicant failed to finish Year 8 at school as she was suffering from so much emotional turmoil. She was told that if she continued to stay away from school she would be taken away from her family and that led to her deliberately staying away in the hope that just that result would follow. Because of the family's frequent moves of house, however, that never happened.

18 Ms Briggs concluded that the assaults made upon the complainant had adversely affected her personality and her resources for coping with life. The effects were permanent. She was a person always on guard, mistrusting others, having feelings of hopelessness and low self-esteem and felt ashamed and guilty.

19 Throughout her life the complainant has struggled with depression. Even at the time of the report she was continuing to experience distressing recollections and nightmares, reactivating the feelings generated by the abuse. Such memories provoked feelings of anxiety and fear, affecting her ability to function day to day and her ability to enjoy a fully loving and intimate relationship with her husband.

20 His Honour accepted this evidence. He accepted that the complainant experienced a complete lack of libido even during the fifteen years of her marriage and that she was so distressed by sexual intimacy that she and her husband only engaged in intercourse once or twice per year. Although she trusted her husband deeply she suffered from fears, which she admitted were irrational, that he might harm their children.

21 In dealing with these effects, his Honour had to bear in mind that they resulted partly from the commission of the offences charged and partly from criminal activity not falling for sentencing. There was thus a need for some sensitivity about the weight to be given to the evidence in determining the sentences. However, favourably to the applicant, his Honour did not regard the evidence as justifying any increase in any of the sentences. His Honour said that he took it into account to show in a practical way the effect the applicant's acts had had upon her and to put paid to any consideration of leniency upon any asserted basis that no harm had resulted.

22 The court was referred on appeal to cases where the accumulation of sentences has produced a non-parole period which exceeds seventy-five per cent of the effective head sentence and inferences which might be properly drawn where the sentencing judge has not explained why there was an intention to achieve such a result. Counsel referred in passing to R v LWP [2003] NSWCCA 215 and R v Lyndon [2003] NSWCCA 152 and in some detail to R v Reicher [2003] NSWCCA 300. Whatever inference it might have been appropriate to draw in another case it should not in my view be drawn here in view of the remark his Honour made about the need for the aggregate non-parole period to reflect the objective seriousness of the offences.

23 In my view, and taking full account of the fact that his Honour was sentencing for three offences out of many, the objective facts were so serious that after discounting the starting sentences by twenty-five per cent to acknowledge the early pleas of guilty, as his Honour did, the resulting sentences were individually, and more importantly, cumulatively, well justified. It was expressly to the aggregate non-parole period that his Honour referred in placing a limitation upon the effects of the adjustment pursuant to s 44 Crimes (Sentencing Procedure) Act.

24 In my opinion his Honour did not fall into error but imposed the total effective sentences that he intended for the reasons he expressed. The sentences otherwise fall within the limits of his Honour's discretion. Even if I had concluded that his Honour had erred in failing to carry out his express intention I would not have reduced the non-parole period in view of the very serious nature of this case.

25 I would grant leave to appeal but would dismiss the appeal.

26 NEWMAN AJ: I agree. I just wish to add that I endorse in particular the last observation made by the presiding judge. It is, in my view, even if there had been an error in method by the learned judge below, the sentence imposed is warranted in law and the observations made by Lee AJ in R v Astill (No 2) (1992) 64 A Crim R 289 are applicable in this instance. As I have said, I agree with the orders proposed by the presiding judge.

27 BARR J: The orders are therefore as I proposed. **********

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