R v H

Olbrich (1999) 199 CLR 270; Stringer (2000) NSWCCA 293 distinguished.

Ground 2: uncharged offences were inappropriately taken into account This submission relied on the assumption that the trial judge added an increment to the sentences for the charged offences, by way of punishment for uncharged acts in the victim's statement. However, nothing in the reasons for sentence provided support for this assumption. It was entirely appropriate for the prosecution to place before the Court the wider sexual history, to explain the relationship, to place the offences into context and to meet any suggestion that the offences were islolated incidents.

H (1980) A Crim R 53; RNS (1999) NSWCCA 122; GWE NSWCCA 12 March 1997; H (1994) 74 A Crim R 41; JCW (2000) NSWCCA 209 applied.

Ground 3: the trial judge failed to give proper weight to the pleas and confession The trial judge did not overlook the significance of the pleas and the fact that the applicant effectively gave himself up to police. Although the extent of the discount extended was not indicated, the sentence was pronounced before the guideline judgment of Thomson and Houlton in which that course was encouraged.

A failure to expressly quantify the discount given does not demonstrate an appellable error. In the end the question depends upon a consideration of what might have been an appropriate sentence, after taking into account all of the objective and subjective circumstances, including the early pleas and the assistance provided through the voluntary disclosure of the offences.

1 WOOD CJ AT CL: The applicant seeks leave to appeal against the sentences imposed upon him by his Honour Judge Job in the District Court at Gosford on 5 May 2000. 2 Pleas of guilty were entered by him in relation to three counts of sexual intercourse with a child between the age of 10 and 16 years in circumstances of aggravation, namely, that the victim, who was his step-daughter, was under his authority. These three counts were preferred under s 66 C (2) of the Crimes Act and the maximum penalty available for each offence was imprisonment for 10 years. 3 The indictment further charged the commission of an act of indecency with the same victim while under the age of 16 years and under his authority. The maximum penalty for this offence, to which the applicant pleaded guilty, was imprisonment for five years (s 61 0 (1) of the Crimes Act). 4 The short facts in relation to these crimes were as follows: 5 Count 1: At a time before her fourteenth birthday (a circumstance to which I will return) the applicant instructed the victim to remove her shorts and underpants and to lie on the floor. He placed a condom on his penis and inserted it a small way in her vagina before withdrawing when she complained that it hurt. 6 Count 2: After the victim turned 14 the applicant again placed his penis into her vagina on this occasion penetrating her more deeply and occasioning her pain. 7 Count 3: One afternoon after school, when the victim was 14 or 15 years of an age the applicant instructed her to remove her top and bra and to suck his penis. 8 Count 4: On 8 January 1999 the prisoner took the victim into the bathroom to shower together. While there he made her masturbate him. 9 The total period spanned by these counts as charged was between 15 September 1997 and 8 January 1999. 10 Six other offences were included on a Form 1 spanning a period of two years from 1 January 1997 to 31 December 1998. They include three offences of aggravated indecent assault contrary to s 61 M (1) of the Crimes Act, the first of which involved the applicant touching the victim's vagina and having her touch his penis; the second of which involved the applicant having the victim masturbate him; and the third of which involved him shaving her pubic hair. 11 The remaining three matters comprised offences of sexual intercourse with a child between 10 and 16 years, under the applicant's authority, contrary to s 66 C (2) of the Crimes Act. The first of these additional matters involved the act of the applicant in requiring the victim to suck his penis while they were in the bathroom together. The second and third offences occurred on the same date and involved the act of the applicant in producing two vibrators, one of which he required the victim to insert into her vagina and the other of which he inserted into her anus while masturbating her with a pen and requiring her, all the while, to read to him from the Forum column of a Penthouse magazine. 12 The offences included in the indictment and in the Form 1 were shown to be part of a wider history of sexual interference with the victim, who had been born on 15 September 1983. In the two statements which she provided, and which were tendered without objection, she described a number of other acts of the applicant commencing with his regular touching of her breasts and vagina, from the age of about 11 years, taking and placing her hand on his penis and placing his penis between her legs in the shower, requiring her to dance for him in underwear, showing her pornographic images on the Internet of women engaged in sexual activity with animals and showing her photographs of himself having sex with his wife. None of these acts were disputed by the applicant when he gave evidence. 13 The applicant was sentenced on counts 1 and 3 in the indictment to a fixed term of two and a half wears to date from 2 May 2000; and in relation to count 4 to a fixed term of 18 months to be served concurrently with the sentences in relation to counts 2 and 3. In relation to the first count, taking into consideration the matters on the Form 1, the applicant was sentenced to imprisonment for five years to be served cumulatively upon the sentences for counts 2 and 3. The effective head sentence was accordingly one of seven and a half years imprisonment. A non-parole period was set to expire on 1 May 2005. 14 Before turning to the grounds upon which the applicant relies it is convenient to note that the offences only came to light because of the prisoner's disclosures to his wife, commencing on 15 February 1999, with expressions of concern that he had been entertaining inappropriate feelings for the victim, although without having touched her; and progressing to disclosure, on the following day, to having had sex with her. During these various disclosures the applicant displayed a good deal of distress, and on the second occasion the police were contacted because of his wife's fears that he might harm himself. When speaking to police over the phone he asked them to come and arrest him. 15 When formally interviewed by the police the applicant admitted to having incompletely and briefly penetrated the vagina of the victim on two occasions. He did not disclose any wider sexual impropriety with her. 16 The applicant pleaded guilty to the offences from the outset and sought counselling from Doctors Darcy and Spark, neither of whom found in him any sign of mental illness apart from some depression reactive to his stress, guilt, unemployment and isolation, and to the pending court proceedings. The applicant also saw a counsellor, Mr Bust, and a psychiatric nurse and was referred for possible pre-trial diversion via the Cedar House programme. He was however adjudged unsuitable for that programme. He was also referred for a psychiatric assessment for the purpose of determining his suitability for entry into the Sex Offenders Programme. He was assessed as posing a moderate risk of reoffending and to be suitable for the educational programme which is a precursor to the CORE programme, a low intensity programme designed to help sex offenders work on changing their thinking, attitude and feelings. 17 The applicant was 41 years of age when he appeared for sentence. He had a prior record of some antiquity and of no relevance to the present offences, as well as a history of employment with Telecom for some 20 years before taking redundancy. His Honour assessed that working record as "good" and expressly noted that he would not take the prior convictions into account. 18 In 1996 the applicant was involved in a motor vehicle accident in the course of which he suffered a back injury and his wife suffered serious leg injuries which left her in constant pain and which interfered with their sexual life. 19 When giving evidence the applicant expressed shame for what he had done and accepted that the effect on the victim was "insurmountable" and inexcusable. It was his evidence that, while he knew what he was doing was against the law, he had not thought it to be wrong. He said that he was now searching for reasons, and seeking assistance, as to why he had done what he has done. 20 The fact of the disclosures to his wife he attributed to the accumulation of guilt that he needed to get off his chest, to the realisation that the victim was being deprived of the opportunity for forming relationships with persons of her own age, and to the realisation that he did not want the misconduct to continue. 21 He asserted that he was not trying to lay blame on the victim, although that was not the impression of the authors of the psychological reports, who came to the view that he was endeavouring to pass some responsibility to her. 22 All of these matters were taken into account by his Honour, in a comprehensive judgment on sentence, in the course of which he noted that it was in the applicant's favour that he had contacted the police voluntarily, before any complaint had been made by the victim, and that the pleas of guilty had saved her the ordeal of having to give evidence. Each of those matters his Honour expressly said that he would take into account. Special circumstances were found, having regard to the assessment that the applicant would need some assistance when released upon parole. 23 His Honour appropriately noted that the offences were extremely serious, that young children are virtually helpless against sexual attacks by parents, and that deterrence is of prime importance when sentencing in such cases. 24 It was submitted that his Honour fell into error in three respects:

The Applicant was Sentenced on Count 1 on a Factual Basis that was not Particularised: 25 This count charged an offence while the victim was aged 14 years occurring between 15 September 1997 and 15 September 1998, yet his Honour sentenced him by reference to the facts contained in paragraph 13 of the complainant's first statement, that is, upon the basis that she was aged 13 years. 26 It is true that during the period charged she would have been aged 14 years. The sentencing proceedings were, however, conducted upon the basis that it was the facts asserted in paragraph 13 of the statement that gave rise to this count, and that the victim had in fact been aged 13 years. While leave was given to amend count 4 on the indictment, it appears that the need to amend count 1 to accord with the facts particularised, was overlooked. 27 This is not a case where the dates particularised were of the essence, that is, essential ingredients of the offence (see Stringer (2000) NSW CCA 293). The indictment was not, as a consequence, defective: s 58(g) of the Criminal Procedure Act 1986. 28 It has been made clear this morning that the applicant does not seek to resile from the plea. Some reliance was, however, placed by the applicant upon the circumstance that, in the ERISP, he had admitted to only two acts of penile/vaginal intercourse, each occurring when the victim was aged fourteen years, and also upon the fact that, in paragraph 15 of the victim's statement, there were two such acts described by her as having occurred after her 14th birthday. 29 There are two problems with this submission which, as I have observed, does not raise a matter going to the integrity of the plea, but rather is directed to the proposition that the applicant was sentenced upon a more serious version of events than was in fact the case. 30 The first problem lies in the fact that the ERISP involved only a partial admission of the applicant's criminality. By his plea, by his request that the offences included in the Form 1 be taken into account, and by his failure to take issue with any of the matters raised in the victim's statements, the applicant clearly accepted the existence of a considerably wider history of offending than that to which he had admitted in the ERISP. It is disingenuous, in those circumstances, to submit that the applicant's admissions were confined to the two acts of penile/vaginal intercourse disclosed in the ERISP. 31 The case is not of the genus of which Kirby J spoke in Olbrich (1999) 199 CLR 270 at 291. The offence to which the applicant pleaded did not differ according to whether the victim was 13 or 14 years old at the time of its commission. In any event, I am quite unable to see that it was any less serious for the victim to have been aged fourteen years rather than thirteen years, in a case involving such a gross abuse of a breach of trust. This submission is not made good.

Uncharged Offences were Inappropriately taken into Account as Circumstances of Aggravation: 32 This submission depends on the assumption that his Honour added an increment to the sentences for the charged offences, by way of punishment for various uncharged acts disclosed in the victim's statement. 33 Had this been the case then the ground would have been made good for the reasons discussed in De Simoni (1981) 147 CLR 383 and Olbrich (1999) 73 ALJR 1550. There is, however, nothing in the reasons for sentence that provides any support for the assumption upon which the submission rests. 34 It was entirely appropriate for the prosecution to place before his Honour the wider sexual history, in order to explain the relationship, to place the offences into context, and to meet any suggestion that the counts in the indictment and the Form 1 were isolated lapses on the applicant's part and not events occurring in the course of a systemic course of abuse extending over a number of years. This is established by a long line of authority: see for example H (1980) 3 A Crim R 53 at 59 per Street CJ, per Moffit P at 62 and per Begg J at 74; R N S (1999) NSW CCA 122; G W E NSW CCA 12 March 1997, H (1994) 74 A Crim R 41 per Gleeson CJ at 43 and J C W (2000) NSW CCA 209. 35 The continuing validity of the distinction between not increasing a sentence, and failing to grant leniency, on account of the fact that the events charged were not isolated instances, was examined in some detail in J C W in the light of the different approach that had been taken in Queensland, in the decision of D (1996) 1 QDR 363. 36 In J C W, after reviewing the authorities, Spigelman CJ at para 38, came to the conclusion there was no warrant for refusing to follow the consistent line of authority in this State and for adopting the reasoning in D. His Honour also noted that this approach would accord with that adopted in Victoria: S B L (1999) 1 VR 706; and with the observations of the High Court in Siganto (1998) 194 CLR 656, concerning the validity of the distinction between denying the existence of circumstances of mitigation, and asserting the existence of circumstances of aggravation. 37 I am not persuaded that his Honour used the wider sexual history other than for the purpose permitted by this line of authority. Moreover, the proof of the wider history was relevant in assessing the several matters arising for consideration from the psychiatric and psychological assessments, concerning in particular the applicant's appreciation of his wrongdoing, his prospects of rehabilitation, and the true extent of his remorse or contrition. 38 Moreover, the case was not one where there was any issue as to the occurrence of the uncharged events. The statements, as I have observed, were tendered without objection, and the applicant accepted in cross-examination that the misconduct had begun when the victim was 11 years old and had continued until the time of his arrest. He also agreed that he accepted full responsibility for his actions, and expressly acknowledged to having allowed the victim to see the pornography on the Internet and the photographs of himself and his wife. This submission is not made good. 39 In a supplementary submission an additional argument was advanced that his Honour fell into error so far as he had taken into account the fact that the applicant had been assessed as unsuitable for entry into the Cedar House programme. Reliance was placed, in this regard, upon the decisions of this Court in P W H NSW CCA 20 February 1992 and Harding NSW CCA 16 December 1993. 40 The point considered in those cases was, however, very different. It related to the relevance and admissibility of the proof of a breach of an agreement entered into by an offender, once admitted to the programme. 41 In the present case the attempted entry to Cedar House was a matter operating in favour of the applicant, so far as it demonstrated remorse; while the assessment of his unsuitability was also relevant for an appreciation of his contrition and an understanding of his criminality. There is no suggestion whatsoever that the fact of his lack of success in gaining entry to the programme was taken into account as a circumstance of aggravation. This additional ground is also not made good.

Failure to give Proper Weight to the Pleas and Confession: 42 It may be accepted that the pleas were early pleas, the applicant having been committed for sentence on 21 October 1999 by way of a hand up brief, and having earlier offered himself for admission to the Cedar House Diversionary Programme, a precondition of which was an acceptance of his guilt. The pleas had a considerable utilitarian value in saving the victim the ordeal of being called to give evidence, and also in saving the time and expense of a trial. 43 Moreover, the case is one where the fact of those pleas, and the evidence otherwise tendered, did convey a considerable degree of remorse upon his part. On the other hand, it also disclosed a lack of appreciation of the nature and extent of his criminality, and hence his contrition does need to be regarded as somewhat qualified. 44 It may also be accepted that, without the applicant's confessions to his wife and to the police, the offences would not have come to light when they did since, despite the suspicions entertained by the applicant's wife and from other relatives there had been no complaint from the victim. Indeed, on one occasion, when pressed about it, she had denied that the applicant had been touching her. 45 This is a circumstance that does operate in mitigation of the sentence for the reasons discussed in Ellis (1986) 6 NSWLR 603 at 604. 46 However, it also ought not to be overlooked that, at the time of the disclosures, the complainant was still aged only fifteen years. In the light of the nature and extent of the violation of her, and with the benefit of the experience of similar victims coming forward years later, when they realise the enormity of what has occurred to them, it could not possibly be said that these offences would never have come to light but for the applicant's disclosures. 47 As I have observed his Honour did not overlook the significance of the pleas, and the fact that the applicant effectively gave himself up to police. Although he did not indicate the extent of the discount extended, it may be observed that the sentence was pronounced before the guideline decision of this Court in Thompson and Houlten (2000) 49 NSWLR 338 in which that course was particularly encouraged. 48 It is not the case that a failure to quantify expressly the discount given demonstrates appellable error. In the end the question depends upon a consideration of what might have been an appropriate sentence, after taking into account all of the objective and subjective circumstances, including the early pleas and the assistance provided through the voluntary disclosure of the offences. 49 The offences charged, and the number of them, properly placed this case in the upper range of seriousness for offences of their kind; see Ibbs (1987) 163 CLR 447. They involved a very serious breach of trust by a stepfather and the element of general and specific deterrence loomed large, since this kind of violation of children cannot be tolerated by any civilised society. 50 When these circumstances are taken into account, and the principle of totality is applied, I am of the view that the sentences were well within a legitimate range of sentencing discretion, and that the effective sentencing order reflected an appropriate reduction for the early pleas, and for the applicant's disclosure of his criminality. The sentencing statistics which were relied upon by the Crown, and by the applicant, for different purposes, provide very little by way of assistance in this regard, having regard to the number of offences here involved, and the wide range of objective and subjective circumstances which are encountered within the individual cases which make up those statistics. They have utility as background information, but they still need to be considered with a great deal of caution, since sentencing can never be reduced to a mathematical exercise dependent on statistics. 51 I would grant leave to appeal, but I would dismiss the appeal, and confirm the sentences below. 52 GREG JAMES J: I agree. 53 WOOD CJ AT CL: The order of the Court will be as I have proposed. 54 The case will be reported under initials. Otherwise the name of the victim is not to be disclosed. **********

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