R v SJH

JUDGMENT OF: Grove J at 1; Simpson J at 2; RA Hulme J at 3

DECISION: Appeal allowed. Re-sentenced to an aggragate of 12 years with non-parole period of 8 years.

CATCHWORDS: CRIMINAL LAW - sentence - Crown appeal - multiple child sexual assault offences over six year period - totality principle - whether error in concurrent sentences

LEGISLATION CITED: Crimes Act 1900 Crimes (Appeal and Review) Act 2001

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 Mottram v R [2009] NSWCCA 210 Pearce v The Queen (1998) 194 CLR 610 CASES CITED : R v Carroll [2010] NSWCCA 55 R v JW [2010] NSWCCA 49 R v MJR [2002] NSWCCA 129; 54 NSWLR 368 R v MMK [2006] NSWCCA 272; 164 A Crim R 481 R v Mulato [2006] NSWCCA 282

PARTIES: Regina (Applicant) SJH (Respondent)

COUNSEL: Ms M Cinque (Applicant) Mr M Paish (Respondent)

SOLICITORS: Solicitor for Public Prosecutions Chris Outzen Solicitor

IN THE COURT OF CRIMINAL APPEAL 2009/2700

GROVE J SIMPSON J R A HULME J

1 GROVE J: I agree with R A Hulme J. 2 SIMPSON J: I agree with R A Hulme J. 3 R A HULME J: This is a Crown appeal in respect of sentences imposed upon the respondent on 7 October 2009 in the District Court at Penrith in respect of eight child sexual assault offences. A further nine offences of a similar nature were taken into account at the respondent's request in the sentence for count one on the indictment.

4 Her Honour Judge English imposed a total sentence of imprisonment for 9 years with a non-parole period of 5 years with effect from 10 June 2009. The individual offences and sentences were: 1: Sexual intercourse with a child under the age of 10 (s 66A Crimes Act 1900 - maximum penalty 20 years) - Taking into account Form 1 offences, imprisonment for 9 years with a non-parole period 5 years from 10 June 2009.

2: Aggravated indecent assault of a child under the age of 10 (s 61M(2) - 10 years) - Fixed term of imprisonment for 3 years 9 months from 10 June 2009.

3: Sexual intercourse with a child under the age of 10 (s 66A - 20 years) - Fixed term of imprisonment for 4 years 6 months from 10 June 2009.

4: Aggravated indecent assault of a child under the age of 10 (s 61M(2) - 10 years) - Fixed term of imprisonment for 3 years 9 months from 10 June 2009.

5: Aggravated indecent assault of a child under the age of 16 (s 61M(1) - 7 years) - Fixed term of imprisonment for 3 years from 10 June 2009.

6: Aggravated indecent assault of a child under the age of 16 (s 61M(1) - 7 years) - Fixed term of imprisonment for 3 years from 10 June 2009

7: Sexual intercourse with a child between the ages of 10 and 16 (s 66C(2) - 10 years) - Imprisonment for 4 years 6 months with a non-parole period of 3 years from 10 June 2010

8: Attempt to have sexual intercourse with a child between the ages of 10 and 16 (s 66D - 10 years) - Imprisonment for 4 years 6 months with a non-parole period of 3 years from 10 June 2010

5 The offences on the Form 1 were: Aggravated act of indecency (s 61O(1) - 5 years) - offences numbered 4, 5 and 6. Aggravated indecent assault (s 61M(1) - 7 years) - offences numbered 1 and 3. Aggravated indecent assault (s 61M(2) - 10 years) - offences numbered 7, 8 and 9. Sexual intercourse with a child between the ages of 10 and 16 (s 66C(2) - 10 years) - offence numbered 2.

6 It will be seen that the sentences for the offences in counts 2 to 8 were ordered to be served concurrently with the sentence for count 1 notwithstanding that the sentences relating to counts 7 and 8 were ordered to commence one year later than all the other sentences. This feature is at the heart of the appeal which was instituted by a notice of appeal filed on 21 October 2009 and was served upon the respondent the same day.

7 Each of the offences were committed against the respondent's daughter who was born in 1985. The first offence occurred in 1993 when she was aged 7 and the last occurred in 1999 when she was aged 13. There was a period of 2 years from when she was aged 11 in which the respondent desisted from offending but that followed an incident in which the complainant's mother observed the respondent assaulting her. The offending finally stopped after the complainant told her mother that the respondent was sexually abusing her again. The offences, in chronological order, were as follows.

8 Count 1 and Form 1 offence 4: On a weekend in March 1993 the complainant's mother was absent from the home attending a Christian conference for women, leaving the complainant at home in the care of the respondent. One morning he got into her bed, removed his pyjama pants and her pyjamas and then touched his erect penis. He then inserted a finger into her vagina and masturbated her clitoris. After doing this for some time he left the bed. The complainant was aged 7.

9 Count 3 and Form 1 offences 7 and 8: During the summer of 1993-1994 the family was staying at the home of the respondent's mother at French's Forest for three days whilst there were bushfires in the area of their own home in the Blue Mountains. The respondent slept in a double bed with the complainant. On the first morning the respondent touched the complainant on the outside of her vagina and then inserted a finger into her vagina. He touched the outside of her vagina again on second and third mornings. The complainant was aged 8.

10 Count 4 and Form 1 offence 9: In about May 1994 whilst swimming in a public swimming pool the respondent exposed his erect penis to the complainant and instructed her to masturbate him. She complied. He then instructed her to put her head under the water and lick his penis and she again complied. The complainant was aged 9.

11 Count 2 and Form 1 offence 5: On a weekend in March 1995 the complainant's mother was once again absent from the home whilst attending a conference. One morning the respondent got into the complainant's bed, removed his pyjama pants and the complainant's pyjamas and then touched his erect penis. He then touched the outside of her vagina. After doing this for some time he left the bed. The complainant was aged 9.

12 Form 1 offences 1 and 6: The facts of these offences are identical to those for the incident just described except that they occurred in March 1996 when the complainant was aged 10.

13 Count 5: On a day between 28 April and 31 July 1995 the family attended the Aquatic Centre at Homebush. At one point the respondent and the complainant were alone in a spa. The complainant was half sitting and half standing with her back to the respondent. He put his hands around her, pulled her swimming costume aside and touched the outside of her vagina. The complainant was aged 10.

14 Count 6: On Christmas Eve 1996 the complainant and her brother were at home swimming in the backyard pool. At one point the complainant was lying on her stomach on the edge of the pool. The respondent approached, pulled her swimming costume aside and touched the outside of her vagina. This was the incident observed by the complainant's mother who confronted the offender. The complainant was aged 11.

15 Counts 7 and 8 and Form 1 offences 2 and 3: On a day in January or February 1999 the respondent took the complainant to her bedroom where he touched and licked her breasts before licking the outside and inside of her vagina. He then got on top of her and attempted unsuccessfully to insert his erect penis into her vagina. He then inserted two fingers into her vagina which caused bleeding. The respondent then told the complainant that what they had done was wrong and invited her to join him in praying for God's forgiveness. The complainant was aged 13.

16 When the complainant was 11 years old she told two school friends that she had been sexually assaulted by the respondent. This led to inquiries being made by officers of the Department of Community Services but no action was taken. The inquiries included speaking to the respondent and his wife after which they spoke with the complainant. In the course of this conversation the respondent said that he did not "rape" her. It was a short time after this that the complainant's mother witnessed the incident in count 6 when she came home unexpectedly. However the respondent was successful in placating her and assuring her that it would not happen again.

17 In February 1999 the complainant told her mother that the respondent was sexually assaulting her again. The respondent was confronted about this and there were discussions involving other family members as well as members of their church. It was resolved to place a lock on the door of the complainant's bedroom. The respondent was warned that there would be consequences if he offended again. He subsequently sought counselling.

18 The matters did not come to the attention of the authorities until the complainant went to the police in February 2008. The applicant was arrested on 28 March 2008. He went into custody when his bail was revoked on 10 June 2009, the first day of the sentence hearing.

19 In relation to each of the offences in counts 1 to 3 and 6 to 8 the judge took into account that they occurred in places where the complainant should have been able to feel safe and secure, either in her own bedroom or at the home of her grandmother. She held that the offences in counts 1 to 4 were aggravated by the fact that the respondent was the complainant's father whereas in contrast, this was an element of the offences in counts 5 to 8. The judge also took into account that the commission of the offences has had a profound impact upon the complainant and that "the emotional ongoing harm is substantial". There was an evidentiary basis for this finding. A very moving victim impact statement was tendered to the court and read by the complainant.

20 On the other hand the judge also took into account that the offences were not accompanied by threats or violence and there were no threats made to ensure that the complainant did not disclose his offending conduct. She noted that the offender probably relied upon his natural authority and her compliance with him.

21 The judge found the offence in count 1 fell, "at the mid-range of objective seriousness". She noted that, "the younger a child is the more serious the offence"; that the act of penetration was, "not so heinous as vaginal/penile penetration of a child of this age"; but also that there is no hierarchy of seriousness based upon the type of penetration and that all the circumstances of the offence must be taken into account.

22 The judge assessed the offence in count 2 as being, "Just below the mid-range of objective seriousness"; the offences in counts 3 to 6 as being "mid-range"; and the offences in counts 7 and 8 as "falling at the mid-range of objective seriousness, if not slightly above".

23 Reports by Dr Jeremy O'Dea, forensic psychiatrist, and Ms Charlotte Leung, psychologist were before the judge. The respondent's mother gave evidence but he did not.

24 The respondent was born in 1959 and was aged between 32 and 39 at the time of the offences. He was aged 50 at the time of sentence. He has no previous criminal convictions.

25 The respondent lived at home in an unremarkable family environment until he married at the age of 23. His schooling was relatively uneventful. He had a history of stable employment since leaving school, having worked for most of his life with what was described as a "large corporate firm". He resigned from that employment after being charged by the police.

26 The respondent and his wife separated after the complainant made her report to police in 2008. During the marriage they had lived first at Faulconbridge and then at Kingswood. As well as the complainant they had a son who is three years younger. The respondent told Dr O'Dea that up until the complainant went to the police, "we were a very normal family". Both the respondent and his wife regularly attended church and bible studies.

27 There is no history of abuse of alcohol or use of illicit substances. Nor is there any history of medical or psychiatric problems. The respondent consulted a psychiatrist on a weekly basis for three months in 1999 after his offending behaviour had first come to light but he told Dr O'Dea that he did not find these sessions helpful, saying "we never really got to the bottom of why I did what I did". He consulted Ms Leung on a number of occasions since 2008 (in fact since February 2009, around the time the pleas of guilty were entered) and said he had found those sessions helpful, although he said that she had focused on anxiety and depression rather than sexual problems.

28 Based upon the history provided by the respondent, Dr O'Dea opined that the respondent's offending behaviour arose from him having sexualised the close relationship he had experienced with the complainant. He reported that male incest offenders against their daughters usually do not report an awareness of a specific and strong sexual attraction to female children in general, but rather sexualise the father-daughter relationship. He considered that the respondent's risk of engaging in further sex offending behaviours in the community in the long term was low. However, Dr O'Dea also considered that it would be appropriate for the respondent "from a risk management perspective" to engage with a psychiatrist or psychologist with the aim of assisting him to manage and minimise his risk of engaging in further sex offending in the long term. He added that it would be sensible that the respondent not be in direct and sole supervision of a female child in the absence of a responsible adult.

29 Ms Leung was also of the view that the respondent's likelihood of recidivism was low and she opined that he was unlikely to pose a threat to the general community. She said that he had expressed shame and remorse and had acknowledged that what he had done was wrong. He could not, however, explain the underlying reasons for his offending. He told Ms Leung that he did not appreciate it at the time but had since become aware of the impact of his behaviour upon his daughter. He indicated a willingness to participate in sex offender treatment programs.

30 The respondent's mother's evidence included that he was, "very sorry, very remorseful and very ashamed".

31 The respondent had entered pleas of guilty in the Local Court and the judge allowed a discount of 25 per cent for their utilitarian value. Whilst there was no evidence from the respondent himself the judge was still prepared to find that he was, "truly remorseful and contrite and does demonstrate victim empathy and insight into the profound impact his evil conduct has had upon his daughter". She also found that he had good prospects for rehabilitation, if he underwent appropriate counselling, and that he was unlikely to re-offend. The judge also noted the respondent's prior good character but said that it gave him "little comfort".

32 The judge stated that sexual assault offences committed upon children, particularly by persons in a position of trust, warrant severe punishment, not only to punish the offender but to deter others. 33 Special circumstances were found for reducing the proportion of the sentence for count 1 represented by the non-parole period because of the need for the applicant to have, "a lengthy supervised rehabilitation to assist him to re-integrate … into society after a lengthy period of time in custody". The judge also noted in this regard that the applicant was 50 years of age and was going into custody for the first time.

34 There was reference to the requirement to sentence in accordance with sentencing patterns and principles that applied at the time the offences were committed (see, for example, R v MJR [2002] NSWCCA 129; 54 NSWLR 368) although she did not identify what they were. The maximum penalties provided in the relevant sections of the Crimes Act are now greater for the same conduct and circumstances of aggravation. Standard non-parole periods that are now prescribed for some of the offences do not apply to offences committed before 1 February 2003. There is nothing to suggest that the judge was unaware of the correct prevailing maximum penalties and that they were less than presently apply.

35 The judge also made reference to the need to sentence in accordance with what was said in Pearce v The Queen (1998) 194 CLR 610. In this regard she said: I have had regard to the principles of totality. The sentences (as said) are committed in two separate periods of time. It is appropriate that the sentences for the first group of offences committed between 1993 and 1996 be concurrent and there be a partial accumulation in respect of the offences committed in 1999.

36 In relation to the need to take into account the offences on the Form 1 she said: In respect of count 1 I have taken into account the matters contained on the Form 1. They are serious matters and call for a significant increase in the penalty which has been imposed.

37 After the sentences were announced, counsel for the Crown observed that the sentences for counts 7 and 8 were totally subsumed in the sentence for count 1 and inquired whether that was the judge's intention. She replied that it was, and added, "Otherwise it becomes a crushing penalty".

Ground 1 Her Honour erred by failing to effectively order that the sentences or some of them should be partially accumulated on Count 1

Ground 2 The sentences imposed are manifestly inadequate

38 The Crown submitted that the total sentence is manifestly inadequate when regard is had to the following features: a) the maximum penalties for the eight offences on the indictment ranged from 7 years to 20 years;

b) general deterrence is of special significance for offences of this nature;

c) the offences occurred over a period of at least six years;

d) the complainant was aged between 7 and 14 at the relevant time;

e) the respondent was the complainant's biological father who was also in a position of trust and authority (where this was not an element of the offence)

f) the respondent continued offending even after being caught, indicating that specific deterrence was of particular significance;

g) the judge's findings as to the objective seriousness of the offences being mid-range, apart from count 2 (just below mid-range) and counts 7 and 8 (mid-range if not slightly above); and

h) the finding that substantial ongoing harm had been occasioned to the complainant.

39 My only disagreement with any of these matters is that I do not think that specific deterrence was of any greater significance in this case because of the repetition of offending after the respondent's misconduct became known in the summer of 1996-97. If the sentencing exercise was carried out soon after the last of the offences I agree that it would have been relevant but it must be recognised that the offending ceased in 1999, some ten years before sentencing. There were also the opinions of the psychiatrist and psychologist to be considered, they both expressing a view that the respondent was a low risk of further sexual offending.

40 On behalf of the respondent the Court's attention was drawn to the fact that the 25 per cent reduction allowed by the judge for the utilitarian value of the pleas of guilty meant that she must have adopted a starting point of 12 years. This, it was submitted, was "not an insubstantial period of time … even having regard to the nature of the crimes committed by the respondent".

41 It was submitted that the offences were obviously serious but that the courts have dealt with offending behaviour which has been worse. So much cannot be gainsaid but this is not a submission that assists in the determination of the matter.

42 It was submitted that the judge had given careful consideration to the objective seriousness of the offences although it was suggested that her finding that counts 5 and 6 fell into the mid-range overstated the seriousness of those offences and that they should be regarded as being "just below mid-range", the same as count 2. It was not submitted that the finding was not open to her Honour to make. This submission has the appearance of inviting this Court to tinker with a finding "classically within the role of the sentencing judge": R v Mulato [2006] NSWCCA 282 per Spigelman CJ at [37].

43 It was submitted that there could be no criticism of the judge for failing to take into account some aggravating feature, or taking into account a mitigating feature which was not available. It was noted that the Crown did not challenge the judge's findings in respect of the respondent's pleas of guilty, his remorse and his good prospects of rehabilitation. It was contended that these were "powerful features in a subjective case that give legitimate grounds for reducing an otherwise applicable sentence", and counsel emphasised that this was entirely a matter for the judge's discretion.

44 The respondent contended that the judge was entitled to structure the sentence as she did and that there was no rule or principle that required her to accumulate or partially accumulate the individual sentences. Reference was made to the statement in the joint judgment in Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 at [26], that: Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected.

45 This submission is undoubtedly correct. However, experience indicates that accumulation of individual sentences is virtually the norm in cases of multiple child sexual assault offences committed over a period of time. In order to validate this I have perused eighteen such cases that have come to this Court in the past two years and found only one in which concurrent sentences were imposed. That was in Mottram v R [2009] NSWCCA 210, a severity appeal in which Hoeben J stated that there was no rational justification for the sentencing judge to have ordered that the sentences be served concurrently. This was regarded as an error that favoured the applicant and afforded him considerable leniency.

46 Finally it was submitted on behalf of the respondent, and this really puts the case for the respondent in a nutshell, that regardless of whether there was accumulation or not, the sentence for count 1 does not offend the principle of totality in that it did comprehend and reflect the criminality of the other offences. As a consequence the overall sentence was not manifestly inadequate.

47 The Crown does not contend that any of the individual sentences are inadequate. The Crown's contention is that by the failure to order an effective degree of partial accumulation the overall sentence does not adequately reflect the totality of the respondent's criminality.

48 The decision as to whether to order sentences to be served concurrently or accumulatively, either in whole or in part, is clearly discretionary but it is guided by principle. In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41, Howie J succinctly stated: [27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

49 In R v MMK [2006] NSWCCA 272, 164 A Crim R 481, the Court (Spigelman CJ, Whealy and Howie JJ) stated: [13] In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality.

50 On behalf of the respondent it was not contended that any of the individual sentences were excessive. The question may thus be posed: If a sentence of 9 years with a non-parole period of 5 years is appropriate for the offence in count 1, taking into account the Form 1 offences, does it also appropriately reflect the totality of criminality of 7 other serious child sexual assault offences? The answer to my mind is resoundingly no.

51 The judge's statement immediately after announcing the sentences that she had had regard to the principle of totality and that she had ordered a degree of partial accumulation in respect of the offences committed in 1999 is difficult to understand. As the above authorities make clear, sentences are accumulated for the purpose, where necessary, to increase the level of punishment so as to properly reflect the total criminality in all of the offences. In the present case there was no point in partially accumulating the sentences for counts seven and eight upon other sentences when they were all themselves subsumed within the sentence imposed for the first count. There was no increase in the level of punishment at all.

52 The conclusion is inevitable that the sentence for count one for an offence that occurred in 1993 can in no way adequately reflect the totality of criminality inherent in the commission of seven further offences against the same victim in the following six years. This is particularly so when each of those seven further offences are of such gravity as to carry maximum penalties of imprisonment ranging from 7 to 20 years with an assessment that their objective seriousness was either in or just below the middle of the range.

53 An overall sentence of 12 years with a non-parole period component of 8 years is an appropriate reflection of the totality of criminality coupled with due regard to the favourable aspects of the respondent's subjective case including a twenty-five per cent reduction for his early pleas of guilty. To achieve this end it will not be necessary to partially accumulate every individual sentence. The individual sentences should be the same as imposed by the court below, although I would not set non-parole periods in the sentences for counts 7 and 8 because there would be no practical utility in doing so. The finding of special circumstances should be maintained. 54 It was put in written submissions for the respondent that the "principle of rarity" applying to Crown appeals meant that the Court has a "lively discretion to refuse to intervene even if error has been shown". Judgment was delivered in R v JW [2010] NSWCCA 49 after the hearing of the present appeal. In considering the consequences of the insertion of s 68A in the Crimes (Appeal and Review) Act 2001, Spigelman CJ, with whom in this respect all of the other four members of the Court agreed, stated: [124] Insofar as references to 'rarity' were to be understood as applicable to sentencing in an individual case then, in my opinion, those references should now be regarded as no longer applicable by reason of the abolition of the double jeopardy principle".

In further written submissions on behalf of the respondent it was conceded that in view of what was said in R v JW the submission as to the "principle of rarity" cannot stand. 55 No other basis for discretionary dismissal of the appeal was advanced on behalf of the respondent. There has been some delay in the delivery of judgment because of the necessity of awaiting delivery of the reserved judgments in R v JW and R v Carroll [2010] NSWCCA 55. However the overall period that has elapsed since the sentences were imposed on 7 October 2009, the filing of the notice of appeal on 21 October 2009 and now is not a matter of significance in this context.

56 I propose the following orders: 1. Allow the appeal.

2. Confirm the terms of the sentences imposed in the District Court for Counts 2 and 3 as follows: Count 2 : Fixed term of imprisonment for 3 years 9 months to date from 10 June 2009.

Count 3 : Fixed term of imprisonment for 4 years 6 months from 10 June 2009. 3. Confirm the terms of the sentences imposed in the District Court for Counts 1 and Counts 4 to 8 but vary the dates of commencement as follows: Count 4 : Fixed term of imprisonment for 3 years 9 months from 10 June 2010.

On each of counts 5 and 6 : Fixed term of imprisonment for 3 years from 10 June 2010.

On each of counts 7 and 8 : Fixed term of imprisonment for 4 years 6 months from 10 June 2011

Count 1 (and taking into account Form 1 offences): Imprisonment for 9 years with a non-parole period of 5 years. The sentence to date from 10 June 2012. The offender will be eligible for release on parole upon the expiration of the non-parole period on 9 June 2017. The total term of the sentence will expire on 9 June 2021.

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