R v EGC

Court of Criminal Appeal (NSW)|2005-11-08|Before: Sully J, Hulme J, Latham J, Miss J

R v EGC [2005] NSWCCA 392 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

DECISION: Leave to appeal granted; Appeal allowed in part; Quash the sentences imposed on Counts 1 and 2; On each of Counts 1 and 2 impose a non-parole period of 2 years to date from 17 September 2005 expiring 16 September 2007, with the balance of the term being 2 years, expiring 16 September 2009; Quash the sentence imposed on Count 3; On Count 3, taking into account the offence on the Form 1, impose a non-parole period of 2 years to date from 17 September 2006, expiring 16 September 2008, with the balance of the term being 3 years, expiring 16 September 2011.

Crimes Act 1900 LEGISLATION CITED: Pre-Trial Diversion of Offenders Act 1985

Humphries [2004] NSWCCA 370 R v Holyoak (1995) 82 A Crim R 502 R v Thompson (unrep) CCA 18 June 1996 V (1998) 99 A Crim R 297 R v Blanco (1999) 106 A Crim R 303 R v Cockerell [2001] VSCA 239 CASES CITED: R v Todd [1982] 2 NSWLR 517 R v Virgona [2004] NSWCCA 415 R v Fidow [2004] NSWCCA 172 R v Moon (2000) 117 A Crim R 497 : [2000] NSWCCA 534 R v MJR 92000) 54 NSWLR 386 at 384 Dodd (1991) 57 A Crim R 549

Crown - Respondent EGC - Applicant PARTIES:

Crown - W Roser COUNSEL: Applicant - Miss J Manuell

Crown - S Kavanagh SOLICITORS: Applicant - SE O'Connor

SULLY J HULME J LATHAM J

1 SULLY J: I agree with Latham J 2 HULME J: I agree with Latham J 3 LATHAM J: The Applicant seeks leave to appeal against the sentences imposed on 1 October 2004 by his Honour Judge Berman SC (the Judge) in the District Court. The applicant pleaded guilty on 27 July 2004 to three counts of sexual intercourse with a person under the age of 10 years (his then step-daughter N who was between the ages of 7 and 10 years), contrary to s 66A of the Crimes Act 1900 (Counts 1 - 3 on Indictment). Each of these offences carried a maximum penalty of 20 years' imprisonment at the time the offences were committed between 1986 and 1988. He also pleaded guilty to one count of aggravated indecent assault of a person under the age of 16 years under his authority (his then step-son L who was between the ages of 4 and 6 years), contrary to the repealed section 61E(1A) of the Crimes Act, which carried a maximum penalty of 6 years' penal servitude (Count 4 on Indictment). The Applicant asked that a further offence of aggravated indecent assault of a person under 16 under his authority (his then step-daughter N, aged between 7 and 10 years) be taken into account (s 61E(1A)), when sentencing for the offence represented by Count 3. 4 His Honour sentenced the applicant to an effective term of imprisonment of 7 years to date from 17 September 2004, expiring 16 September 2011, and an effective non-parole period of 5 years and 3 months to date from 17 September 2004 expiring 16 December 2009. More particularly, the applicant was sentenced as follows:-

Counts 1 and 2 On each count, imprisonment for 4 years fixed term to date from 17 September 2005 expiring on 16 September 2009.

Count 3 Taking into account the offence on the Form 1, imprisonment for 5 years to date from 17 September 2006, expiring on 16 September 2011, with a non- parole period of 3 years 3 months to date from 17 September 2006, expiring on 16 December 2009. Count 4 Imprisonment for 2 years, fixed term, to date from 17 September 2004, expiring on 16 September 2006. The applicant had been in custody since 17 September 2004, following the completion of the sentencing proceedings. 5 The grounds of appeal as filed assert four specific errors by the Judge, in support of the general ground that the sentences were manifestly excessive. The four errors are:-

i) A failure to take into account the loss of an opportunity to successfully complete a pre-trial diversionary program. Such a program was said to be hypothetically available to the applicant in 1991 when the offences were formally notified to the relevant authorities. However, at that time, a pre-requisite for the application of the Pre-Trial Diversion of Offenders Act 1985 , namely that the applicant be charged with a relevant offence, did not exist. The applicant was not charged until 2002.

(ii) A failure to place sufficient weight on the applicant's rehabilitation attempts in the period 1989 - 2002.

(iii) A failure to find that the delay in prosecution infringed the public interest in the quick resolution of justice.

(iv) A failure to take into account the relevant sentencing practices at the time of the commission and disclosure of the offences (1986 - 1991).

On the hearing of the appeal, (ii) and (iii) were modified to the extent that they were subsumed under a broader submission asserting error by the Judge in his approach to the issue of delay.

Factual background to the offences 6 An Agreed Statement of Facts was tendered as Exhibit A. N was born in 1978 and her younger brother L was born in 1982. Their parents separated in 1985 and the applicant formed a relationship with their mother. The applicant moved in with them in a house at Little Bay in about late 1986. The applicant was a professional musician and recorded in the mornings for a TV show, returning home at about 3:00pm when he worked in one of the rooms, which he had converted into a music studio. The children's mother often worked overtime at night and on weekends in her job as an executive secretary at Botany. The applicant looked after the children much of the time. 7 Shortly after moving in to live with N's mother, the applicant began to enter N's bedroom late at night whilst she was asleep in the top bunk. She was wearing nightie pyjamas and underpants. She awoke to find the applicant fondling her chest and vaginal area (Form 1 offence). When N asked him what he was doing he would say to her "I am loving you". When she told him that she would tell her mum, he would say that it was just between them and that her mother already knew. 8 This continued for about a month or two, at which time the applicant began to insert his fingers into her vagina when he visited her bedroom at night (Count 1 - digital sexual intercourse). When N awoke to find the applicant engaged in this conduct he would remove his fingers and leave the room. 9 During the day when the applicant and N were at home together, the applicant would entice her into the music room where he would ask her if she wanted to play a game. He would establish some type of reward N wanted and she would have to comply with his request to receive the reward. In the beginning the applicant would have her remove her clothing or dress up for him, leading up to him performing oral sex on her (Count 2 - cunnilingus). During some day time incidents, the applicant would have N shower with him, where he would digitally penetrate her. 10 Over a period of time the applicant began having anal sexual intercourse with her (Count 3 - anal sexual intercourse). There would be nights where he would come to her room on more than one occasion. 11 All these incidents occurred on a regular basis over the two year period from 1986 to 1988. Thus, the counts on Indictment were representative of this course of conduct. 12 N's younger brother, L, who shared the bedroom with her, observed the applicant coming into the bedroom at night and getting up onto the top bunk and forcing himself upon N.

13 A few months after the applicant began his assaults on N, L was sick and had to stay home from school. He went into the music room where the applicant was playing with a toy gun and shooting at stars which decorated the ceiling. L got into the double bed and started to play with the gun as well. While this was taking place, the applicant placed his hand down the front of L's pants and said "Try this, it feels good". As he said this he grabbed L's penis. When L said "You are not supposed to touch me there. That's my penis". The applicant said "Yeah, it feels good doesn't it. Its only natural". L replied in the negative and tried to push his hand away. The applicant kept trying to put his hand on L's penis until L left the room. 14 The applicant continued to go into the bedroom occupied by L and N on a regular basis. On at least two other occasions the applicant again touched L's penis. On each occasion L told the applicant that he was not to do that and "You are not allowed to touch me there". 15 In about 1989, N disclosed to her mother what the applicant had been doing to her. When N's mother confronted the applicant about the allegations, the applicant confessed, stating that he was sorry for what had occurred and that he had no control over the situation. Later that year, the applicant and N's mother married and the family continued to reside at Little Bay.

16 In 1991 the Department of Family and Community Services was notified of the applicant's inappropriate behaviour towards N. Both the applicant and N were interviewed by the Department. N underwent counselling until she was about 14 years of age. The applicant also underwent counselling at the Prince of Wales Children's Hospital Randwick. Police were contacted but no formal complaint eventuated. 17 In about late 1991 or early 1992, the family moved to Croydon Park to enable N to continue counselling at Burwood. Some time in 1992, the applicant and N's mother separated. After moving out with her mother, N did not see the applicant for the next 10 years or so. 18 In about October 2002, the applicant contacted N's mother by telephone and enquired about N and asked her to convey to N his remorse for what he had done to her and that "I did not want to hurt anyone". After N's mother informed her about the conversation with the applicant, N made a formal complaint to police on 6 November 2002. 19 On 14 April 2003 L made a formal complaint to police about the applicant's sexual misconduct towards him when he was aged between 4 and 6. 20 The applicant was arrested on 12 June 2003 and made complete admissions, despite having no clear recollection of the frequency of the assaults. The applicant was given the benefit of a 25 percent discount in recognition of the early pleas of guilty, and the judge accepted that the applicant was genuinely remorseful. 21 The applicant had no relevant criminal history. A pre-sentence report (Ex C), a psychologist's report (Ex 1) and a psychiatric report (Ex 2) attested to the applicant's treatment for depression, anxiety and cannabis dependence in the years following notification of the offences to the Department of Family and Community Services. These afflictions were said to contribute to the applicant's course of offending.

(i) Loss of Opportunity to Complete Pre-Trial Diversion Program 22 The applicant's complaint on this ground resides in the Judge's failure to refer to this aspect of counsel's submissions in the course of the remarks on sentence, and hence the failure to afford any weight to that submission in determining the sentences to be imposed. 23 The precise ambit of the submission may be found at pp 26-29 of the transcript of the proceedings on 17 September 2004. Following a concession that inaction by the police in 1991 did not warrant criticism, the applicant's counsel went on to say: "Had action been taken back at that time when the Department of Community Services and the police were first advised of the allegations, I think it's fair to say and I hope your Honour would accept that, consistent with his admission to the complainant's mother of committing the offences and consistent with the counselling he underwent, he would have admitted his guilt of these offences. That is particularly significant because being in the family unit, the de-facto family unit, at that time and remaining in it for some years after he would have been a prime candidate, he was the sort of offender to which the Pre-trial Diversion of Offenders Program was specifically directed. He is not now. Upon being charged in 2003, so many years out of the family unit, such a scheme was not available to him. But given his willingness to undergo and his response to counselling I would hope your Honour would accept that he would've been a success story of any such diversionary program."

24 There followed an exchange between his Honour and the applicant's counsel, wherein the relevance of the submission was debated. In effect, the applicant's counsel asserted that the delay in prosecuting his client deprived him of the likelihood of a non-custodial penalty. His Honour noted that a multitude of factors may well have intervened to disqualify the applicant from the program, assuming he had been charged in 1991. Essentially, his Honour queried why the asserted loss of opportunity to enter the program had anything at all to do with delay. 25 Ultimately, the applicant's counsel below agreed that any one of a number of criteria for entry into the program may not have been met by the applicant in 1991. However, the fact remains that the applicant was ineligible because he was not charged. Section 6 of the Pre-Trial Division of Offenders Act 1985 (as in force in 1991) provided that a person charged with a relevant offence was to be furnished with information regarding the operation of the Act. Thereafter, the prosecutor determined, according to established guidelines, whether the person would be referred for assessment as to his/her suitability for participation in the program. Where a person was not referred for assessment, or received an unfavourable assessment, the Act ceased to apply. 26 The applicant's submission in this Court proceeded on the basis that the evidence before the Judge established that the criteria applicable in 1991 to entry into the program would have been met by the applicant, had he been charged in 1991. Leaving to one side whether the evidence did in fact go that far, (there was no evidence, for example, that the children's mother would have agreed to participation in the program), the difficulty with this submission is that it elevates speculation to the level of probability. One could not conclude with the confidence required to justify the extension of a degree of leniency to the applicant, that the failure to charge in 1991 was solely responsible for the loss of the opportunity to enter the program. 27 Despite counsel's attempt to distinguish this Court's decision in Humphries [2004] NSWCCA 370, where a similar submission to that under consideration was rejected, there is one aspect of that decision which is apposite. In Humphries, there was a delay of eleven years between the initial complaint and charge, in that the complainant told her mother of the assaults by her father in 1990, yet police were first informed in 2001. In the applicant's case, the evidence established that the Department of Family and Community Services interviewed the applicant in 1991, but the police did not do so. The police involvement consisted of interviews with the children's mother and N. When it became clear that N (who was at the time about 12 years of age) would not make a statement, the police took the matter no further. It would appear that N's mother did not make a statement, although no evidence was available on this score, other than the bare statement in the agreed facts, that "there was no formal complaint to police at this time as the complainant did not wish to press charges against [the applicant]". In the course of the applicant's evidence, he was asked whether he would have admitted the offences in 1991 if he had been questioned by the police (Transcript 17 September 2004 p 9). He replied in the affirmative. Yet there was nothing preventing the applicant from presenting himself to the police and making formal admissions in 1991. In that respect, the remark of Wood CJ at CL in Humphries applies with equal force to the applicant: "the applicant himself could have taken his chances of getting into the programme if he had been prepared to tell the police what had happened." 28 It is not, strictly speaking, correct to assert that the police made a decision in 1991 not to charge the applicant. The evidence, such as it was, established that the police had no admissible evidence on which such charges could be based. True it is that the police appeared to have made no effort to interview the applicant, although in the absence of a statement from N detailing the nature of the assaults it is difficult to determine what, if any, allegations were capable of being put to him. It is equally incorrect to assert that as a consequence of the failure to charge, the applicant suffered a detriment, that is, the loss of the opportunity to complete a diversionary program.

29 In all of these circumstances, the Judge was correct, in my view, in taking the approach that he did to this feature of the applicant's case. Ground 1 fails.

(ii) Insufficient Weight on the Applicant's Rehabilitation (iii) Delay Between Notification of Offences and Prosecution 30 It is convenient to deal with Grounds 2 and 3 together, since both rely on the asserted failure by the Judge to extend leniency to the applicant because of the eleven year delay between notification in 1991 and prosecution in 2002. 31 The applicant's written submissions on these grounds refer to the Judge's remark at p 12 Remarks on Sentence, namely that "the delay has actually worked to the offender's advantage. It has enabled him to demonstrate … his rehabilitation rather than just promise it. There is nothing to suggest he has altered his lifestyle or lived in fear of prosecution for these offences". This remark reflects the judgments of this Court in R v Holyoak (1995) 82 A Crim R 502, R v Thompson (unrep) CCA 18 June 1996 and V (1998) 99 A Crim R 297. The applicant's contention is that the Judge failed to observe a distinction drawn in Holyoak between "delay in the sense of a time lapse between the commission of the offences and conviction for them and delay in the sense of failure by the prosecuting authority expeditiously to bring the offender to trial" (per Allen J at 508). In the applicant's submission the rehabilitation of an offender is not necessarily a mitigating factor in the former circumstance, but it is a powerful mitigating factor in the latter case. Reliance for this proposition is placed on R v Blanco (1999) 106 A Crim R 303 and R v Cockerell [2001] VSCA 239. It is said that the applicant's case falls into that latter category. 32 I doubt that such a neat distinction can be drawn as to the emphasis to be placed on the rehabilitation of an offender in sentencing for a stale offence. Allen J's dicta in Holyoak merely observed that, in the circumstances of that case, 22 years had elapsed between the last of the offences and charge, whilst 5½ years had elapsed between charge and sentence. That 5 year delay was attributable to the offender's various legal challenges to the proceedings, and not attributable to any procrastination by the prosecution. Allen J went on to observe that:- "It is material, of course, that there was delay in the sense that a very long time elapsed between when the applicant committed his offences and when he was convicted. …. Nor would I accept, on balance, that in the present case that lengthy delay was a detriment suffered by the applicant. Whether, in any particular case, so long a delay is a detriment depends upon the circumstances of that case. There is no rule of law that it always is a detriment - although often it will be." (508)

Shortly thereafter, Allen J dealt with the issue of rehabilitation as an incident of delay. Nothing in the judgment suggests that the weight to be afforded to the rehabilitation of an offender varies according to whether delay has been occasioned by tardiness on the part of the prosecution. 33 In Blanco, an inexplicable delay of almost 5 years occurred between the identification of the offender by a co-offender and the offender's arrest and charge on a drug importation offence. Wood CJ at CL observed that it "was not a case where the applicant had been arrested and had spent a long time awaiting sentence, or in a state of suspense as to whether he might be charged; nor is it a case where he had shown any commitment towards rehabilitation after having realised the error of his ways." Nothing further was said on the subject of rehabilitation. Ultimately, however, the Court intervened on the basis that insufficient allowance had been made for "the inordinate and unexplained delay in the prosecution" of the offender. (308) 34 Similarly, in Cockerell, the offender provided an interview to police, including partial admissions to an assault, more than 4 years before he was charged by way of summons. Delay attributable solely to the prosecuting authorities was held to be "a powerful mitigating factor at a number of levels, [namely] where there has been a relatively lengthy process of rehabilitation since the offending, …. [and where] the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her." (447) 35 Blanco and Cockerell are far from the circumstances of this case. The police may have been notified in 1991 of allegations of sexual offences committed against N, but all the available evidence suggested that the applicant's wife and N rejected police involvement. In my view, that was not surprising, given that the children's mother married the applicant about 6 months after N told her of the sexual assaults. The offences remained confidential for another 2 years. Mere knowledge of such allegations cannot found a justifiable inference of deliberate inaction by prosecuting authorities. 36 A number of decisions of this Court are consistent with the Judge's approach to this issue, in circumstances where the complainant and members of her family decline to make a statement or contact the police, despite some early intervention by welfare authorities. V, Thompson and Humphries all fall into that category and resulted in the dismissal of sentence appeals premised upon non-adherence to the principles established in R v Todd [1982] 2 NSWLR 517. In V, Wood CJ at CL cites Thompson and Holyoak amongst others, as illustrative of the proposition that leniency is not necessarily extended wherever there is a stale offence or substantial delay (at 300). 37 The Judge accepted that the applicant had demonstrated rehabilitation. He found that the applicant was "unlikely to re-offend, having good prospects of rehabilitation" (Remarks on sentence 13-14). There is no substance to the submission that the Judge failed to give sufficient weight to the applicant's rehabilitation in the context of the delay between notification of the assaults to the police and charge. 38 That said, there is, in my view, some substance to the submission that the passage of time between the commission of the offences and sentence was capable of constituting special circumstances. The Judge declined to find special circumstances, referring only to the applicant's age, the likely nature of his custody and the fact that the sentences represented his first experience of custody. This Court has recognised prosecution for a stale offence as a special circumstance warranting alteration of the statutory ratio: R v Virgona [2004] NSWCCA 415. I would regard the imposition of a custodial sentence for the commission of offences 16 years ago as "sufficiently special to justify a variation" : R v Fidow [2004] NSWCCA 172 per Spigelman CJ. 39 It is necessary to turn to the final ground before resolving the relationship of the non-parole period to the head sentence.

Sentencing Practices Applicable in 1986 - 1991 40 It is not clear for my part, how his Honour could be said to have erred in respect of this ground. No information was put before him as to the sentencing practices for offences of this nature in 1991. It is acknowledged by the applicant that there is no reliable statistical data available in respect of offences under ss 66A and 61E(1A) committed between 1986 and 1988. His Honour noted the maximum penalties applicable to both offences at the time of their commission. In that respect, he did not commit the error which triggered the intervention of the Court in R v Moon (2000) 117 A Crim R 497 : [2000] NSWCCA 534: . 41 In the absence of relevant statistical material, the approach set out by Howie J in Moon at 511 [67] - [71]; is the correct one; R v MJR 92000) 54 NSWLR 386 at 384. In summary, a court must have regard to the maximum penalty for the offence at the time the offence was committed, and the court must consider where in the range of conduct covered by the offence the particular criminal conduct committed by the offender falls. In undertaking that exercise, the subjective features of the offender ought not overshadow the objective gravity of the offence : Dodd (1991) 57 A Crim R 549. 42 The applicant has not been able to demonstrate any departure from this prescription on the part of the Judge. It is acknowledged that the objective criminality of the offences was grave. The Judge noted that: "the seriousness of the offences is obvious. That the offender would use children as objects for his sexual gratification must be punished severely. The complainants were entitled to look towards the offender as someone who would protect them, not abuse them. By being brought into their home, he was being placed in a position of trust, a position he abused for his own purposes. Offences such as these display remarkable levels of callousness. The offender, who was a very intelligent man would have known full well had he bothered to consider it, that committing these offences would have had lasting effects upon the complainants, in particular on N. Not only should these sentences act as a general deterrent to others who may be tempted to act this way, but the sentences must also mark in an obvious way just how wrong it is for offenders to harm young children by using them as sex objects. 43 There remains the question whether, absent any specific error, the sentences imposed are nonetheless manifestly excessive. Before such a position could be reached, it must appear that the discretionary exercise is so unreasonable as to give rise to an inference that the discretion has miscarried. It is not sufficient to substitute a sentence for that imposed, merely because an appellate court would have dealt with the matter differently. 44 I do not regard the sentences, either individually or in their totality, outside the legitimate range of his Honour's sentencing discretion. A sentence of two years for an offence carrying a maximum penalty of 6 years does not strike me as excessive, particularly when one has regard to the age of the victim, L. Sentences of 4 years on each of the offences constituted by cunnilingus and digital penetration, whilst stern, are appropriate to the circumstances of the case. The act of anal intercourse, and the reflection of the Form One offence, called for a sentence greater than that imposed in respect of Counts 1 and 2. 45 An effective sentence of seven years was appropriate to the totality of the applicant's criminality. Whilst comparisons are not always helpful, an effective sentence of 6 years was not disturbed by this Court in V, where offences committed between 1979 and 1984 on the offender's 2 stepdaughters (aged between 9 and 13) included 3 counts of sexual intercourse without consent (digital penetration), carrying a maximum penalty of 10 years' imprisonment, and 4 counts of indecent assault, carrying a maximum penalty of 6 years' imprisonment. The offender pleaded guilty. Whilst there may have been a greater number of offences in V, the maximum penalty applicable to the most serious offences was half the maximum penalty applicable here. Similarly in Thompson, an appeal against the severity of an effective 8 year sentence was dismissed, where the offender pleaded guilty to 2 counts of sexual intercourse without consent and 1 count of indecent assault, committed against his 3 stepchildren between 1982 and 1987. A further 4 acts of sexual intercourse without consent, 2 acts of indent assault and 5 acts of indecency were taken into account. The relevant maximum penalties were 10 years and 4 years. The acts of sexual intercourse included anal and digital penetration. In both V and Thompson substantial rehabilitation had taken place.+ 46 I return to the issue of special circumstances. Consistent with the finding at par. 36, I consider an effective non-parole period of 4 years appropriate. Accordingly, I would make the following orders:-

Leave to appeal granted. Appeal allowed in part.

On each of Counts 1 and 2, impose a non-parole period of 2 years to date from 17 September 2005 expiring 16 September 2007, with the balance of the term being 2 years, expiring 16 September 2009.

On Count 3, taking into account the offence on the Form 1, I impose a non-parole period of 2 years to date from 17 September 2006, expiring 16 September 2008, with the balance of the term being 3 years, expiring 16 September 2011.

The earliest date on which the applicant is entitled to release on parole is 17 September 2008.

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