R v ND

Notice of Appeal

1. On 18 November 2015, the Director of Public Prosecutions filed a Notice of Appeal against sentence relying upon the ground that the sentence was manifestly inadequate.

Remarks on Sentence

1. Her Honour's remarks were delivered orally shortly after the conclusion of the submissions on sentence. It is not the role of this Court to examine these remarks with an unduly critical eye, concentrating on matters of form and not substance.
2. Her Honour recounted the fact of the respondent's conviction, and the facts surrounding the offending to which I have earlier referred. Her Honour noted that the respondent had one prior conviction in 1995 for a minor offence.
3. Her Honour noted the Victim Impact Statement which recorded the effects which the assault had, and continues to have, on the victim. Her Honour, while recognising the effects of the offence upon the victim, found that the emotional harm and damage caused by the offence was not sufficiently substantial to constitute an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
4. Her Honour then considered the objective seriousness of the offence. She noted the Crown's submission that since the offence was isolated, short in duration, opportunistic in nature, involved no threat of violence and involved a minimal use of force, it fell below the mid‑range of objective seriousness. Her Honour then noted the respondent's submission that the objective seriousness was at the bottom, or at the low end, of the range.
5. After considering these submissions, her Honour found that the offence fell "towards the lower end of the range of objective seriousness" for offences of this kind.
6. Her Honour then turned to consider the subjective factors relevant to the sentence. She noted that the respondent was almost 40 years old at the time of the sentence, had always maintained employment, and was married with four children. She recorded his service with the Defence Forces, including service in Iraq, for a total period of 10 years.
7. Her Honour accepted a submission that the respondent's prior criminal conviction was isolated and should not feature in his sentencing. As well, the sentencing Judge accepted that the respondent's wife suffered from a significant back injury which impaired her ability to work. The sentencing Judge also accepted that the respondent's family would suffer hardship, in particular financial hardship, as a consequence of a term of imprisonment.
8. However, with respect to these last two adverse effects, her Honour accepted that, to the extent that they could be taken into account, they were only relevant as part of the mix of factors to be considered when fixing a non-parole period.
9. Her Honour referred generally to the sentencing statistics and acknowledged their limited use. She concluded that the prospects of the respondent re‑offending were low. She went on to find the existence of special circumstances. Having identified these matters, her Honour then imposed the sentence to which I have referred above.

Crown Submissions

1. Although the Crown's appeal was limited to the ground that the sentence was manifestly inadequate, it pointed to the following errors in her Honour's reasons which produced that result: 1. the sentencing Judge failed properly to assess the objective seriousness of the offence; 2. the sentencing Judge failed to find the abuse of the position of trust as an aggravating feature; 3. the sentencing Judge failed properly to address the victim's age and vulnerability as an aggravating factor; 4. the sentencing Judge failed properly to assess the respondent's prospects of re‑offending; and 5. the sentencing Judge erred in finding special circumstances and in setting an erroneously lenient non-parole period.
2. The first three of these matters address the objective seriousness of the offence and can conveniently be considered together.
3. The Crown submitted that an offence against s 66A of the Crimes Act is an offence of "the utmost seriousness", as indicated by the maximum penalty of 25 years and the applicable standard non-parole period of 15 years imprisonment.
4. The Crown acknowledged that it had submitted to the sentencing Judge that the offence was below the mid-range of objective seriousness for offences of the kind. It did not disavow that submission in this Court, but submitted that the sentencing Judge's characterisation of the offending as being "towards the lower end of the range of objective seriousness" was plainly erroneous. In support of this submission, the Crown relied principally on two matters. First, at the time of the offence, the victim was 5 years and 10 months of age, well below the age of 10 years required for an offence against s 66A of the Crimes Act. Secondly, there was a considerable breach of trust involved in the offending, given that the respondent was the uncle of the victim, and was in charge of the victim in the absence of the victim's mother.
5. The Crown submitted that while the offending was relatively short in duration, lasting only a few minutes, it was not merely transient, and only ceased when the respondent heard the victim's mother returning home. The Crown pointed to the fact that the offending persisted even though it caused the victim pain.
6. The Crown submitted that the age and vulnerability of a victim and the abuse of a position of trust or authority are both aggravating factors in ss 21A(2)(k) and 21A(2)(l) of the Crimes (Sentencing Procedure) Act. In those circumstances, the Crown submitted that it was not open to the sentencing Judge to characterise the objective seriousness of the offence as she did.
7. In further support of this submission, the Crown drew attention to the fact that this Court has, on a number of occasions, remarked that the abuse by an offender of a position of trust is a significant aggravating factor: R v Stoupe [2015] NSWCCA 175, Corby v R [2010] NSWCCA 146 at [73]. As well, the Crown pointed to the fact that the age of the victim should have been considered a highly aggravating factor: SW v R [2013] NSWCCA 255 at [47], particularly when combined with the fact that the younger the child is, the more vulnerable and defenceless they are: MLP v R [2006] NSWCCA 271 at [22].
8. The fourth respect in which the Crown challenged the sentencing Judge's findings was with respect to her conclusion that the respondent had good prospects of rehabilitation and was at a low risk of re-offending, particularly in the absence of any expression of remorse, contrition or insight into his offending. The Crown also pointed to the fact that there was no pre-sentence report and no psychological assessment as to the respondent's risk of re-offending. Accordingly, the Crown submitted that there was little, if any, material upon which the sentencing Judge could base such a finding, and that it ought not to have been made.
9. Finally, the Crown submitted that the sentencing Judge erred in finding special circumstances, and in setting an erroneously lenient non-parole period. While acknowledging the fact that the fixing of a non-parole period is discretionary, the Crown contended that the non-parole period did not appropriately reflect the criminality involved in the offence: see R v Simpson [2001] NSWCCA 534 at [63]. The Crown pointed to the fact that the matters relied upon by the sentencing Judge to constitute special circumstances could not properly be characterised as such.
10. More generally, the Crown submitted that the nature of the offence was one which called for a strong element of general deterrence, denunciation and the protection of the community: see EG v R [2015] NSWCCA 21 at [42].
11. The Crown submitted that although the sentencing Judge did refer to general deterrence in the abstract, the sentence which she imposed did not adequately reflect the need for either general or specific deterrence.
12. The Crown drew the Court's attention to a series of cases which it submitted were of assistance in determining whether error had been shown.

The Respondent's Submissions

1. With respect to the categorisation of the objective serious of the offence, the respondent submitted that an examination of the sentencing Judge's reasons reveals that she had regard to all of the factors to which the Crown has pointed, and that this Court would in those circumstances be reluctant to intervene.
2. The respondent conceded that the submission which had been made to the sentencing Judge, namely that the offence was at or near the bottom or low end of the range of objective seriousness, could not be maintained. However, the respondent pointed to the fact that that submission had been rejected by the sentencing Judge when she concluded that the offence fell "towards the lower end of the range". The respondent submitted that the Court should be satisfied that, in substance, the sentencing Judge had accepted the Crown's submission that the offending was below the mid-range of objective seriousness.
3. The respondent also pointed to the fact that it was clear from her Honour's remarks that the sentencing Judge was aware of the victim's age, and also the abuse of trust which was involved, and that these factors were taken into account.
4. The respondent submitted that there was no error to be found in the sentencing Judge's conclusions with respect to the respondent's prospects of re‑offending and the existence of special circumstances. With respect to her Honour's finding of special circumstances, the respondent pointed to the fact that this finding was not based on any one fact, but rather a combination of factors relevant to the case. As well, the respondent pointed to the fact that the adjustment of the non-parole period from 75% to 66.67% of the head sentence was a relatively modest adjustment.
5. Finally, the respondent pointed to the cases relied upon in the Crown's submissions and urged the Court to exercise caution in taking them into account because they were a small sub-set of potentially relevant cases and, accordingly, were likely to present a misleading picture of an appropriate range of sentences.
6. Ultimately, counsel for the respondent accepted that the sentence might be regarded as lenient. However, he emphasised that, having regard to the fact that the offending was a single isolated event, the sentence was nevertheless within the permissible discretionary range of a sentencing Judge, and that this Court should not intervene.

Discernment

1. 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.
2. 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.
3. In light of the seriousness of an offence against s 66A of the Crimes Act, Hoeben CJ at CL (with whom Harrison and R A Hulme JJ agreed) said the following in EG v R at [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."
4. As the Chief Judge went on to point out, there is a need for courts to denounce the actions of those who prey on vulnerable children and who intentionally sexually assault them.
5. In our view, there are several features of this case which rendered the objective seriousness of the offence higher than that found by the sentencing judge, including: 1. the victim was only 5 years and 10 months old, well below the statutory age of 10 years and, on any view, young and vulnerable; 2. the victim was in the care of the respondent, who abused his position of trust in behaving as he did; 3. the respondent persisted in his offending after the victim had complained of pain; and 4. the respondent only ceased his offending when he thought he might be caught upon the return of the victim's mother.
6. It was an error for the sentencing Judge to describe the objective seriousness of the offence as being "towards the lower end of the range". It was properly described, as the Crown submitted, as being below the mid-range of objective seriousness. We would add to that description the words "… but not by very much".
7. The respondent's subjective features were important matters to be weighed in the balance as matters of mitigation. He was responsible for the financial support of his family, and the care of his wife. That is not an uncommon feature of offenders coming before the courts. He could properly be regarded as a person of prior good character. There were no other features of the respondent's subjective case which warranted leniency.
8. We note, on the question of the respondent's good character, that the Crown did not submit that s 21A(5A) of the Crimes (Sentencing Procedure) Act, which prevents good character being taken into account in mitigation in child sexual assault cases, applies. Whilst arguably it does apply here, given the absence of submissions addressed to its application, the preferable course is to not apply it. It is well recognised in existing authority that good character is of less significance in cases of repeated sexual offending: see PGM v R [2008] NSWCCA 172 at [43]-[44]; Dousha v R [2008] NSWCCA 263 at [49]. As this is not a case of multiple offending, and the Crown did not submit that the principles were directly applicable, we will put these authorities to one side.
9. No explanation was afforded to the sentencing Judge for the offending which occurred. Nor were there any features identified which could have contributed to the subjective circumstances being of greater weight than would ordinarily be the case.
10. As a result of the erroneously lenient categorisation of the objective seriousness of the offence by the sentencing Judge, and having regard to all of the circumstances, we conclude that the sentence is manifestly inadequate. It did not reflect the principle of general deterrence or of denunciation of the crime. It did not reflect the legislative guideposts which demonstrate that this offence is one of the utmost seriousness. Importantly, the sentence simply did not reflect the degree of objective seriousness of the criminality involved.
11. In the circumstances, we need not further consider the submissions of the Crown dealing with the respondent's prospects of re-offending and the making of an allowance for special circumstances.

Residual Discretion

1. This Court has a residual discretion in the event of a Crown appeal to decline to uphold the appeal despite finding error. Once error is shown, the Crown bears the onus of persuading the Court to intervene by upholding the appeal and resentencing the respondent. In considering the exercise of this discretion, amongst other things, the Court needs to keep in mind that the principal purpose of a Crown appeal against sentence is to enable this Court to lay down and clarify sentencing principles for the guidance of sentencing courts. Consistency of sentencing is a matter of importance in maintaining public confidence in the administration of justice: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 306 per McHugh J.
2. We are persuaded by the Crown that we should refrain from exercising the residual discretion to dismiss the Crown's appeal. There was no specific matter suggested by the respondent militating against intervention except the passage of just under 7 months since the sentence was imposed. But this is only about one-third of the non-parole period imposed by the sentencing Judge, and is not a factor which of itself would justify the exercise of the residual discretion.
3. In light of the disparity between the sentence actually imposed, and what we regard as one necessary to reflect the objective seriousness of the offence, this is not a matter for the exercise by us of the residual discretion to dismiss the appeal.

Re-sentence

1. As has been said, the offence fell below the mid-range of objective seriousness but it was not at the low or lower end of that range. We have earlier referred at [5] to [9] the facts found by the sentencing Judge. We are content to adopt those facts for the purposes of re-sentencing the respondent.
2. The particular features of the offence referred to above at [42] call for denunciation and general deterrence to be given particular consideration in resentencing the respondent. This Court should also receive and consider the victim impact statement which was made by the victim: s 28 Crimes (Sentencing Procedure) Act. Here, the victim impact statement speaks eloquently of the adverse effects of the respondent's conduct.
3. The respondent is entitled to be regarded as a person who, aside from this offence, is to be regarded as a person of good character who does not have a record of significant previous criminal convictions. We also conclude, contrary to the Crown's submissions, as did the sentencing Judge, that the respondent is unlikely to re-offend, and that he has good prospects of rehabilitation.
4. The Court has also had regard, in the limited way permissible, to the many cases drawn to its attention by the parties in the appeal. None of them are sufficiently similar to this case to warrant discussion.
5. The Crown conceded that a finding of special circumstances is available upon the basis that the respondent is required to be the full-time carer for his wife and two year old child on account of his wife's significant back injury. We agree, and make such a finding, but only so that the statutory ratio is altered to a modest extent.
6. In all of the circumstances, the appropriate sentence is one of imprisonment for 6 years with a non-parole period of 4 years.

Orders

1. The Court makes the following orders: 1. Appeal upheld. 2. Sentence of the District Court (Norton SC DCJ) imposed on 6 November 2015 be quashed. 3. In lieu thereof, for the offence against s 66A of the Crimes Act, the respondent be sentenced to a non-parole period of 4 years commencing on 6 November 2015 and expiring on 5 November 2019, with a balance of term of 2 years expiring on 5 November 2021.
2. The respondent will not be eligible for release before the expiry of his non‑parole period.

Amendments 26 July 2016 - Incorrect citation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2016