R v DP

[2019] NSWCCA 55

Court of Criminal Appeal (NSW)|2019-03-08|Before: Fullerton J, Wilson J, Gregory J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2019-03-08

Before

Fullerton J, Wilson J, Gregory J

Catchwords

Zirilli v The Queen [2014] HCA 2
253 CLR 58 Bugmy v The Queen [2013] HCA 37
249 CLR 571 CMB v Attorney General for New South Wales [2015] HCA 9
256 CLR 346 Dinsdale v The Queen [2000] HCA 54

Source

Original judgment source is linked above.

Catchwords

Zirilli v The Queen [2014] HCA 2253 CLR 58 Bugmy v The Queen [2013] HCA 37249 CLR 571 CMB v Attorney General for New South Wales [2015] HCA 9256 CLR 346 Dinsdale v The Queen [2000] HCA 54R v JL

Judgment (17 paragraphs)

[1]

Solicitors: Solicitor for Public Prosecutions (Crown) Gregory J Goold Solicitors File Number(s): 2015/334274 Decision under appeal Court or tribunal: District Court Date of Decision: 06 July 2018 Before: Gartelmann SC DCJ File Number(s): 2015/334274

[2]

Judgment

SIMPSON AJA: I agree with Fullerton J.
FULLERTON J: Pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW), the Director of Public Prosecutions appeals the sentence of imprisonment of 7 years, comprised of a non-parole period of 4 years and a balance of term of 3 years, imposed by Gartelmann SC DCJ on 6 July 2018 after the respondent was convicted of one count of aggravated sexual intercourse without consent with a child between the ages of 10 and 16 years, namely 11 years, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The age of the complainant was the statutory circumstance of aggravation provided for in s 61J(2)(d).

[3]

The facts for sentencing purposes

The sentencing judge summarised the facts for sentencing purposes referable to the evidence adduced at trial as follows: 1. The complainant (CM) was born on 24 July 1997. 2. From the age of two and a half until age 12 CM lived with her great aunt (LM). LM's sister is the respondent's wife. CM stayed with the respondent's family regularly for respite care. She slept in the respondent's bed when she did so. 3. CM gave birth to a child (PM) on 23 February 2010. As the time of conception was assessed as spanning three weeks either side of 10 June 2009, CM was aged 11 years at the time she conceived. The respondent was aged 47 the time of the offence. 4. CM provided investigating police with a variety of accounts as to the males with whom she had, or may have had, sexual intercourse at or about the time of conception. These accounts included a purportedly recovered memory of an incident when she woke in the respondent's bed to find someone having sexual intercourse with her who she could not name. She also told the investigating police that the respondent's sons had sexual intercourse with her. The sentencing judge disregarded this evidence for sentencing purposes, being unable to find, to the requisite standard, that the single event the subject of the recovered memory actually occurred or that the respondent's sons had sexual intercourse with her, or if they did that the respondent had any knowledge of it. 5. The respondent's guilt was based entirely on evidence of opportunity coupled with DNA evidence which established that it was 2.3 billion times more likely that PM's DNA profile would be generated if the respondent were his father rather than an unknown, unrelated male in the community, and between 2000 and 3000 times more likely respectively that the respondent was PM's father than either of his non-excluded sons. 6. The evidence in the trial established little else about the precise facts and circumstances in which the offence was committed.

[5]

The finding of objective seriousness and the circumstances of aggravation in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

The sentencing judge identified the following factors as relevant to his assessment of the objective seriousness of the respondent's offending as within the mid-range: 1. the nature of the act constituting sexual intercourse; 2. the circumstance in which the offence was committed; 3. CM's age; and, 4. the disparity between CM's age and the respondent's age.
After noting that the nature of the sexual intercourse was, self-evidently, penile-vaginal intercourse, the circumstances in which the offence was committed were described by the sentencing judge as follows: There is no evidence that the offence was other than an isolated occurrence. As already noted, the evidence does not permit any finding regarding the circumstances of the incident in which the sexual intercourse occurred. Accordingly, there is no evidence that the offender used force, threat or coercion to compel the victim's compliance during the offence or her subsequent silence. Nor is there any evidence of grooming behaviour on the part of the offender to obtain the victim's compliance.
The sentencing judge considered the absence of any features of the offending other than what he concluded must have occurred for CM to have conceived of limited significance for sentencing purposes given CM's age and the considerable disparity between her age and that of the respondent.
In dealing with CM's age the sentencing judge observed that it was: … not towards the upper end of the age range covered by the statutory circumstance of aggravation constituting the offence. As a general proposition, the younger the victim of a child sexual offence the more serious the offence.
The sentencing judge also treated CM's age at the time she gave birth, when she was neither physically nor psychologically developed, and the fact that she was forced to deal with her pregnancy without any prenatal care or support, as matters of "serious aggravation". He made that finding despite noting there was no evidence that the respondent knew that CM was pregnant until close to the birth of the child such that it could not be said he knowingly failed to ensure she received appropriate assistance.
His Honour further emphasised that despite the lack of evidence regarding the facts and circumstances in which the offence was committed, there was no room for doubt that it occurred when the respondent was in a position of familial trust, being, in effect, CM's great uncle, and in a position of authority since she regularly stayed with him and his family for respite care and shared a bed with him. These factors, coupled with the respondent not using protection against the risk of pregnancy when he committed the offence, were treated as statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act.
Finally, the sentencing judge acknowledged the psychological harm CM suffered by the commission of the offence as reflected in her victim impact statement. He made express mention of "the invidious position of CM giving birth to a child when she was not equipped to do so and through no fault of her own" and the subsequent "traumatic experience of separation from her child" who was taken into State care upon his birth. The sentencing judge went on to say, however: CM referred in her victim impact statement to harm potentially resulting from conduct of others in addition to that resulting from the present offence. It is impossible now to isolate the harm referable solely to the present offence. Nevertheless, the presumed harm resulting from the present offence must be acknowledged, regardless of whether CM also suffered harm as a result of the action of others. CM in her victim impact statement confirmed the offence has had a profound impact upon her life, as one could only reasonably expect in the circumstances.
The sentencing judge made no finding as to whether the degree of emotional harm CM suffered from giving birth to a child whilst she was herself a child was substantial as a further circumstance of aggravation pursuant to s 21A(1)(g) of the Crimes (Sentencing Procedure) Act.
In concluding that the objective seriousness of the offence was in the middle of a very wide range of offending comprehended by the offence created by s 61J(1) of the Crimes Act, he said: Any offence of aggravated sexual assault is serious. The range of acts, circumstances and consequences potentially constituting such offences is very wide. In of all the circumstances, the objective seriousness of the present offence is, in my assessment, in the middle of that very wide range for these serious offences.

[9]

The principles governing Crown appeals

Section 5D(1) of the Criminal Appeal Act relevantly provides that the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against the sentence pronounced by a sentencing court and that the Court, in its discretion, may vary the sentence and impose such sentence as to it seems proper.
However, unless an error of principle in the approach of the sentencing court is clearly demonstrated or, in the absence of specific error, there has been a demonstrated failure by a sentencing court to properly exercise the discretion which the law reposes in it, the power of the appellate court to interfere with the sentence imposed at first instance is not engaged (see Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [61]-[63]).
In Dinsdale, Gleeson CJ and Hayne J said (at [6]): Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.
In R v Barker [2016] NSWCCA 193 Hoeben CJ at CL (Bathurst CJ and Price J agreeing) said: [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: (1) 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). [54] … [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.
These principles have been consistently restated with approval (see R v Phelps [2018] NSWCCA 191 at [50], R v Pullen [2018] NSWCCA 264 at [34] and, more recently, Attorney General for NSW v Macmahon Mining Services Pty Ltd [2019] NSWCCA 8, Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 and Attorney General for the State of New South Wales v Ceerose Pty Ltd [2019] NSWCCA 35).
Even if error is established, s 5D(1) provides that the Court may decline to intervene and re-sentence in the exercise of its residual discretion. It is for the Director of Public Prosecutions to persuade the Court that even if error is made out, the sentence imposed on the respondent at first instance should be varied (see CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346).

[12]

Consideration

In R v KB; R v JL; R v RJB [2011] NSWCCA 190, Bathurst CJ (Buddin and Harrison JJ agreeing) said: [51] As Howie J pointed out in Mirza v R [2007] NSWCCA 248 at [16] the level of objective seriousness of a particular offence is a matter on which minds might differ. It is an assessment which is classically within the role of the sentencing judge. In Mulato v R [2006] NSWCCA 282 Spigelman CJ stated the position as follows (at [37]): "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour." In that case Spigelman CJ found that the characterisation adopted by the sentencing judge was open, although he expressed hesitation in so finding. [52] In the same case, Simpson J set out the position as follows (at [46]): "The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated inHouse v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance." [53] This is particularly so in the case of an offence of this nature which can occur in a very wide variety of different circumstances. That is not to say that appellate courts should not intervene once they have reached a concluded view that the sentencing judge was in error in his or her assessment of the objective seriousness of the offence. However, the approach in Mulato supra, emphasises the need for caution in reaching such a view and the importance of paying due regard to the opinion of the sentencing judge. [54] The Crown in its submissions stated that the sentences failed to mark the seriousness of the offence. It described the offence as a grave example of an offence committed in company particularly having regard to the simultaneous acts of digital/vaginal penetration and fellatio engaged in by KB and JL respectively. It submitted that his Honour failed to refer to this. Further, it is submitted that his Honour erred in failing to take into account the vulnerability of KS due to her gross intoxication as an aggravating factor. It submitted that the fact that KS was aged 12 years was trivialised in favour of the mitigation constituted by each respondent's mistaken belief as to her age.
That case concerned a breach of s 66C(2) of the Crimes Act (namely the offence of aggravated sexual intercourse with the child between 10 and 14 years in company) to which each of the respondents entered pleads of guilty. KB and JL were sentenced to suspended sentences of 15 months whilst RJB was directed to enter into a section 9 bond. The Crown appealed against the inadequacy of sentences imposed on each of the respondents. The appeal was dismissed.
What is instructive for present purposes is that the case exemplifies that a breach of s 66C(2) of the Crimes Act and a breach of s 61J(1) may be committed in a range of circumstances with a corresponding breadth in the range of offending comprehended by both sections. This was acknowledged by the sentencing judge in the extract at [21] above.
While his Honour's assessment of the objective seriousness of the offending might have been expressed differently consistently with the circumstances of aggravation he found established on the evidence, I am not persuaded that his appointment of the offending "in the middle of a very wide range" was not open to him, the more so given that the distinction between offending in the mid-range or above it is imprecise to say the least. I would also add my agreement with the observations of McCallum J (as her Honour then was) in Yeung v R [2018] NSWCCA 52 where, at [19]-[30] (Hoeben CJ at CL and Simpson JA agreeing), her Honour said that the appointment of objective seriousness referable to a notional point on a spectrum of culpability (although convenient as a shorthand descriptor) is not a necessary component of the sentencing task, and to express objective seriousness in that way is rarely definitive of that part of the sentencing exercise that requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender.

[14]

Consideration

In a sentencing environment such as presented in this case after a judge alone trial, where the sentencing judge ought to be permitted as much flexibility in sentencing as was consonant with the application of proper sentencing principles, for the Crown to demonstrate that the sentence is unreasonable or plainly unjust necessitates this Court finding that some substantial wrong has occurred in the appointment of the sentence or, to put it another way, that there must have been a failure to properly exercise the sentencing discretion. In Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 French CJ, Hayne, Kiefel and Bell JJ said: [24] To expose the error in principle, it is necessary to begin by examining what is meant by an "available range" of sentences for an offender. [25] Except where a mandatory sentence is prescribed, a judge fixing the sentence to be imposed on an offender exercises a discretionary judgment. The exercise of discretion is subject to applicable statutory provisions and judge-made law. In particular, when sentencing offenders for offences against the laws of the Commonwealth, a sentencing judge is bound to apply those provisions of Pt IB of the Crimes Act 1914 which govern the sentencing of federal offenders. That Part provides the fundamental starting point for the sentencing of offenders for federal offences. [26] Reference to an "available range" of sentences derives from the well-known principles in House v The King. The residuary category of error in discretionary judgment identified in House is where the result embodied in the court's order "is unreasonable or plainly unjust" and the appellate court infers "that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance". In the field of sentencing appeals, this kind of error is usually referred to as "manifest excess" or "manifest inadequacy". But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences. [27] The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some "substantial wrong has in fact occurred" in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed. [28] Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an "available range" of sentences, stating the bounds of an "available range" of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the re-sentencing court to determine the bounds of the range within which the sentence should fall.
It seems to have been accepted at first instance and on the appeal that there is no available range of sentences for comparable offending capable of being derived from the sentencing statistics. R v RD [2014] NSWCCA 103, the only authority to which the parties referred at first instance and on appeal, is in my view readily distinguishable on a number of bases. In that case, brought by way of a successful Crown appeal against the inadequacy of an aggregate sentence of 3 years with a non-parole period of 18 months, the respondent had pleaded guilty to three counts of having sexual intercourse with a child aged between 10 and 14 years contrary to s 66C of the Crimes Act, which the Crown accepted in full discharge of an indictment charging multiple breaches of s 61J(1). Although the victim of the sexual offending in that case was aged between 12 and 13 at the time of the offences, and although she also gave birth to a child as a result, unlike the respondent to this appeal the respondent was aged between 19 and 20, and had emerged from a home life which was marked by serious deprivation, chaos and neglect. Although in that case I agreed that the Crown appeal should succeed and the respondent should be re-sentenced to an aggregate sentence of 5 years and 6 months with a non-parole period of 2 years and 9 months, I expressed the view that neither the sentences indicated by Hamill J at [65], nor the aggregate sentence the Court imposed, should be taken as reflecting sentences that should have been indicated on the aggregate sentence imposed at first instance for what I considered to be serious and repeated sexual abuse of a young child; observations with which Ward JA agreed.
In my view, in the present case the combination of features of aggravation additional to the age of CM as an element of the aggravated breach of s 61J(1) for which the respondent was to be sentenced, warranted a finding of a very high degree of moral culpability, despite the sentencing judge's findings as to the nature and circumstances of the offending being bereft of detail (a circumstance which I consider both unremarkable and immaterial to the sentencing task). Unlike the offender in RD, the respondent's age and maturity disentitle him to any leniency. Although there was some evidence that his mental and physical health had deteriorated as a result of the charge, a state of affairs which it appears was exacerbated by the delay in the respondent being tried on indictment, I do not regard that or other features of his subjective case as operating in mitigation of his offending to any significant extent.
Given the maximum of 20 years and a standard non-parole period of 10 years as indicators of the seriousness of the offending against the section, I am satisfied that a sentence of 7 years with a non-parole period of 4 years is manifestly inadequate.

[15]

The residual discretion

The respondent submitted that the Crown has not discharged the onus of persuading the Court that the residual discretion should not be exercised in his favour.
Two factors were advanced in support of that proposition. The first that the Crown has failed to make good the submission that intervention is warranted to meet the limiting purpose of a Crown appeal where no permissible range of sentences for like offending have been assembled. Secondly, it was submitted that where a significant term of imprisonment was imposed at first instance, the Court would not be persuaded that public confidence in the administration of criminal justice would be undermined if the sentence were not increased.
As to the first matter, I have already noted that because of the particular circumstances of this offending a range of sentences for comparable offending is simply not available (see also the observations of Hamill J in RD at [43] to similar effect). In those circumstances the remarks of White JA in R v Darwich [2018] NSWCCA 46 at [10] are apposite: Section 5D(1) provides that the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the court may seem proper. The subsection does not say that the Court of Criminal Appeal can only re-sentence if the imposition of a varied sentence is essential in order to provide guidance or governance to sentencing courts. If that were the only relevant question, there would never be an occasion to increase a sentence on a Crown appeal because it could always be said that it would be sufficient for the Court of Criminal Appeal to give guidance and governance by saying what sentence should have been imposed, without actually imposing an increased sentence. That would be inconsistent with the terms of s 5D(1).
As to the second matter, in my view the sentence imposed fell far short of a sentence that adequately addressed the principles of sentencing and the gravity of the respondent's offending, where he was sentenced after trial and where there was no evidence of remorse. In addition, I am compelled to the conclusion that this Court should intervene in circumstances where the sentence failed to adequately reflect the deleterious physical and psychological impact on CM or the seriousness of a sexual assault on a vulnerable child resulting in a pregnancy, being a defining circumstance of the gravity of the offending in this case.

R v DP

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Judgment (17 paragraphs)

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Cases Cited (20)

Cited By (18)