R v TJH

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60831/00 WOOD CJ AT CL GROVE J

19TH OCTOBER 2001 REGINA V TJH Judgment 1 WOOD CJ AT CL: The applicant seeks leave to appeal against the severity of the sentence imposed upon him by his Honour Judge Gibson QC in the District Court at Penrith on 10 November 2000. 2 Upon that occasion his Honour had before him two sets of offences which had come before his Honour Judge Neild and himself during the previous year, and which had initially been dealt with on a non-custodial basis. In summary, they involved the following circumstances:

Offences committed against his daughter SH 3 Between 2 November 1993 and 1 November 1997 the applicant committed one offence of aggravated sexual assault (s 61 J Crimes Act 1900, for which the maximum available sentence was imprisonment for 20 years), and four offences of aggravated indecent assault (s 61 M Crimes Act 1900 for which the maximum penalty is imprisonment for 7 years). The first of the offences involved him inserting his erect penis in the victim's mouth after telling her that he was going to place a lolly into it. The other offences involved him requiring her to remove her underpants and to sit upon his exposed penis while he rubbed it on the outside of her vagina until he ejaculated. 4 She was aged between five and eight years when these offences occurred. Their seriousness was compounded by the instruction which the applicant gave to her not to tell anyone, and by the circumstance that he "told her off" when he discovered that certain of the incidents had been reported to her mother. After DOCS had been contacted he approached police and made partial admissions concerning his misconduct. 5 This series of offences came before the Local Court on 29 June 1998 and the applicant there entered pleas of guilty. He was assessed as suitable for the Cedar Cottage programme and entered a treatment agreement for 2 years commencing on 7 July 1998. 6 When he appeared before Judge Neild on 31 March 1999, he was sentenced, in compliance with an undertaking under s 33 of the Pre-trial Diversion of Offenders Act 1985, to complete the programme.

Offences involving his niece KY. 7 These offences had been committed at an earlier time than those involving his daughter and spanned a period between 1 June 1985 and 1 November 1987. There were, in this respect, one count of sexual intercourse with a child under 16 and under the applicant's authority, (s 61 D, (1 A) Crimes Act for which the maximum penalty is imprisonment for 12 years), one count of sexual intercourse with a child under 16, (s 61 D(1) of the Crimes Act, for which the maximum penalty available is 10 years imprisonment), and three counts of the indecent assault (s 61 E Crimes Act for which the maximum penalty is imprisonment for four years). 8 The most serious of these offences occurred at a time when the victim was staying at the applicant's home. On this occasion he rubbed her genitals, placed her hand on his genitals and masturbated himself until he ejaculated upon her vagina, whereupon he placed his finger inside her vagina. The other count of sexual intercourse similarly involved digital penetration, while the indecent assaults involved rubbing the victim's genitals. 9 All of the offences occurred while the victim was aged 8 years of age or younger and took place either at her home or at the applicant's home. Again, the victim was instructed not to tell anyone and warned that she would get into trouble if she did. She remained quiet until she was 15 years old at which stage she indicated that she wanted counselling. 10 These offences came before His Honour Judge Gibson on 8 October 1999 on which the date the applicant pleaded guilty. On 9 December 1999 his Honour sentenced the applicant to a 3 years good behaviour bond with a condition that he complete the Cedar Cottage programme and obey all of its rules and all reasonable instructions of the Director of the programme.

Failure to complete the Cedar Cottage Programme. 11 On 23 October 2000 the Director of Cedar Cottage notified the Crown that the applicant had breached his undertakings by forwarding parcels and letters to his sons. This followed an earlier decision that he be suspended and recommended for exclusion from the programme. The report provided suggested that he had not validated the victim's accounts of the earlier offences, and had failed to submit goals or to properly complete the manuals and sex log which he was required to maintain. Additionally, it was reported that he had failed to demonstrate accountability for his conduct in withholding details about his use of the Internet and that he had shown no evidence of the knowledge which he was expected to be gaining through the programme to confront relapse prevention. His inadequate performance was noted to be long standing. 12 As a consequence, breach proceedings were commenced and the applicant was called up for sentence, in relation to all matters, before his Honour Judge Gibson.

The sentence. 13 When appearing before his Honour the applicant adhered to the pleas of guilty. 14 He was sentenced in respect of the offences committed upon his daughter as follows: Count 1 : Aggravated sexual assault: 5 years imprisonment with a non parole period of 3 years 9 months, each to date from 3 November 2000 with a non parole period to expire on 2 August 2004. Counts 2 to 5 : Aggravated indecent assaults. On each count fixed terms of imprisonment for 2 years to commence on 3 November 2000 and to expire on 2 November 2002. 15 In relation to the offence committed upon his niece he was sentenced as follows. 16 Count 5: Sexual intercourse with a child under 16 years under authority: 4 years imprisonment with a non-parole period of 2 years, each to commence on 3 August 2004 with a non-parole period expiring on 2 August 2006. Count 4 : Sexual intercourse with a child under 16 years: Fixed term of imprisonment for three years to commence on 3 November 2000 and to expire on 2 November 2003. Counts 1 to 3 : Indecent assault: Each count fixed term of imprisonment for 18 months, similarly to commence on 3 November 2000 and to expire on 2 May 2002. 17 Special circumstances were found, confined to the fact of accumulation of sentence for the offence of sexual intercourse with his niece, as a person under his authority, that accumulation having been upon the non-parole period for the aggravated sexual assault of his daughter.

The Appeal. 18 The applicant has submitted that, while his Honour "comprehensively addressed all relevant sentencing matters", nevertheless the sentences imposed, and as accumulated, were "excessive in all the circumstances." Additionally, it has been submitted that his Honour addressed the question of special circumstances on too narrow a basis. It is convenient to deal with these grounds separately.

Were the sentences excessive? 19 In addressing this submission, the applicant accepted that a bare review of the Judicial Commission statistics would show that for a s 61J offence, following a guilty plea, an effective sentence in the order of 7 years 9 months would have been within range, as would have a sentence of 4 to 6 years for a s 61 D (1 A) matter. However, it was submitted, error was disclosed once a calculation was made, in order to find what would have been "the starting point", absent any allowance for the plea and other mitigating circumstances. That calculation, it was submitted, should involve, for convenience and comparison purposes, four steps, namely: adding 30% to the sentences imposed, this being the total allowance which his Honour stated that he had made for all the mitigating circumstances; · adding an amount for delay since the matters first came to notice; · then adding an amount for the time and effort involved in relation to the Cedar Cottage programme, and finally, · adding an amount of time for delay in relation to the offence involving his niece, KY. 20 Additionally, it was suggested that the discount for the pleas, in respect of the offences involving the niece, should have been greater than 30 percent because of their utilitarian value, their reflection of genuine remorse and the saving of the complainant from the ordeal of giving evidence. 21 I am unpersuaded by this submission, despite the careful submissions of Mr Button. It appears to me to depend upon an artificial process of sentencing which has been rejected at an appellate level. For example, in R v Haye (2001) NSWCCA 358, Sully J observed:

"... The correct starting point is not an enthusiastic plunge into the arithmetic of the discount that has been allowed, or has not been allowed, or should or should not, or might or night not have been allowed. The starting point is a level-headed understanding of the objective criminality of what has been done." 22 Similarly, McHugh J in AB v The Queen (1999) 198 CLR 111, in rejecting the so called "two tier approach" to sentencing as an erroneous approach, said that he did so because it "attempts to give the process of sentencing a degree of exactness which the subject can rarely bear." 23 An application of the approach suggested by the applicant, in the present case, which requires an accumulation of the discounts referable to each of the discrete favourable subjective circumstances found to exist, inevitably risks producing a sentence which is wholly disproportionate for the objective and subjective circumstances involved. This is because there is a degree of overlap between them. The probability of overlap of this kind was clearly identified by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 AT 227-228. 24 Ultimately, the question for a sentencing judge is to determine "what is the appropriate punishment for the particular offence in the relevant circumstances.". See Deane J, in Channon v The Queen (1978) 20 ALR 1 at 18. 25 The discounts of 30 percent for all offences, in my view, adequately reflected all of the favourable subjective circumstance that were found to exist, including the applicant's prior good character, his attempts to undertake the Cedar Cottage Programme, the delay in the proceedings and the utilitarian value of the pleas. None of those factors was overlooked. I see no basis for the submission that the pleas, in the case of the offences involving the niece, were given in circumstances which might have attracted a discount as high as 30% on that account alone. Any such discount would be well in excess of that suggested in the guideline judgment of R v Thomson & Houlton (2000) 49 NSWLR 383, and would be unmerited. 26 It was also submitted, in this regard, that his Honour's assessment of the applicant's failure to complete the Cedar Cottage programme was too harsh and that his problems in not doing so, were related either to the somewhat vague "psychogenic factors" which Dr Warwick John Taylor mentioned in his report, or to a "severe remorse syndrome or post traumatic stress disorder" relating to the offending of the kind which Dr Clarke appears to have diagnosed. 27 I am not persuaded that his Honour erred in preferring the reports from the Cedar Cottage staff, by reason of the time which they had put in with the applicant, which in his Honour's assessment, gave them a better background and insight into his performance. Those reports did not in fact attribute to him any deliberate obstruction, or suggest that he was feigning an ability to recall events. Rather, they were directed to the fact that, in a number of respects, he had not fulfilled the goals or directives of the staff and that as a consequence he was excluded from the programme. Neither Dr Taylor nor Dr Clark suggested that his evaluation was inappropriate, nor could they have done so, given its structure and goals. 28 The applicant's exclusion did have several consequences. First, he was denied the opportunity of completing the diversionary procedure. Secondly, for whatever reason, it threw a real doubt on the extent of his insight and prospects of rehabilitation. It was to that aspect that I am satisfied his Honour was directing himself when he noted that the prisoner had not faced up to the seriousness of the offences. The fact of his attempt to go through the programme was not entirely ignored, since his Honour expressly observed that he was entitled to consideration for this. 29 Had his Honour been of the view that the applicant's lack of co-operation was deliberate, and that he had not entered the programme in good faith, then it is difficult to imagine that any such consideration would have been extended toward him. 30 Next, it was submitted that his Honour's observation that he was "not convinced that (the applicant) does not remain a danger to other young girls" involved a reversal of the onus which lies upon the Crown to prove matters in aggravation. If, by this observation, his Honour had suggested that the onus fell upon the applicant to prove that he was no longer at a risk of reoffending, or was not a danger to the community, then that would have been an error of law. 31 Otherwise, in the light of the history of offending by the applicant and his failure to complete the intensive diversionary programme to the satisfaction of its directors, it was inevitable that he be assessed as posing some risk of reoffending and lacking the insight necessary in this regard. It was to that circumstance that I am satisfied his Honour directed his attention. 32 I observe, finally, in relation to the last two submissions, that this is a Court of error and it does not disturb findings of fact made by sentencing judges unless there is an absence of evidence to support them, or if the evidence all points in the opposite way: See Khouzame (2000) NSWCCA 505. His Honour was much better placed to assess the facts having regard to the lengthy history of the proceedings, and I am not persuaded that the conclusions to which he came were unsupported by the evidence or that he approached them upon an erroneous basis. 33 In a case such as the present, where no error of sentencing principle appears on the face of the reasons, the task which the applicant faces is to show that there was such a disproportion between the sentences imposed and those properly available within the range of a legitimate exercise of sentencing discretion, so as to manifest error: See Elemes (2000) NSWCCA 235. 34 The fact that the Court of Criminal Appeal may have taken a different approach if it been in the position of the primary Judge is never enough: See House v The King (1936) 55 CLR 503, which was approved in AB, and in Dindsale v The Queen (2000) 202 CLR 321. Before it can intervene the court must be satisfied that some sentence other than that imposed was warranted in law and should have been imposed. Otherwise it must dismiss the appeal: s 6 Criminal Appeal Act 1912. 35 In this case I am unpersuaded that any sentence other than those imposed should have been passed. The offences were very serious, they were prolonged and the victims were very young girls who were entitled to look to the applicant for protection rather than defilement. The stern attitude which the Courts take to the sexual assault of young persons, the need for condign punishment, and the significant elements of general and personal deterrence which are called for are well recognised. See R v BJW (2000) NSWCCA 60 R v JVP NSWCCA 6 November 1995, and R v Bamford NSWCCA 23 July 1991. Accumulation of sentence was also clearly appropriate here, in order to reflect the total criminality involved. 36 This aspect of the applicant's submission is, therefore, not made good.

Special circumstances. 37 It was submitted that his Honour took too narrow a view of "special circumstances" in not finding such circumstances to exist, in relation to the longest of the sentences first imposed (hereafter referred to as the "first lead sentence"); and in confining any such finding to the fact of accumulation, so far as the longest of the second sets of sentences (hereafter referred to as a "second lead sentence"), was concerned. 38 In this regard the ratio between the non parole periods and head sentences respectively were as follows: (a) first lead sentence 75% (b) second lead sentence 50% (c) total sentence with accumulation 74% 39 The sentencing order resulted in an overall head sentence of 7 years and 9 months expiring on 2 August 2008, with a non-parole period of 5 years and 9 months, thereby providing a potential period of release subject to supervision on parole of 2 years. Had special circumstances not been found in relation to the second lead sentence, by reason of its accumulation upon the non parole period for the first lead sentence, that clearly would have resulted in a potential period of release which would have been too low. 40 Notwithstanding that adjustment, which was properly made in accordance with authorities, see for example Clarke (1995) 78 A Crim R 226 and Simpson NSWCCA 18 June 1992, it is now submitted that further special circumstances should have been found relating to the age and health of the applicant, to the fact that this was his first experience of imprisonment, and to the partial progress, which he had made through the Cedar Cottage programme towards his rehabilitation. 41 Reliance was placed upon the proposition that the decision in R v Hameed (2001) NSWCCA 287 authorised a more generous approach to this question than that which Sperling J had there described as the "strict approach." That was a decision of a Court constituted by two judges. So far as it purported to decide an issue of sentencing principle, upon which there were thought to be differing views from Courts comprised of three judges I do not consider that it can be regarded as authoritative. Similarly, it would be inappropriate for this court to embark upon the task of deciding or settling a matter of sentencing principle, as to what may properly be regarded as a "special circumstance." That is currently reserved to a five judge bench. 42 Irrespective of whether the stricter or more liberal view is taken, I am not persuaded that occasion arises, in this case, to intervene. The applicant was aged 49 when he appeared for sentence. He was not shown to have any ongoing signs of physical illness or mental illness, beyond the remorse and stress associated with his prosecution and imprisonment. Neither factor could, on any view, have provided a basis for reduction in the non parole period. The fact of this being his first experience of imprisonment, and the need for post release supervision and counselling, both by reference to that matter and also by reference to the interest of rehabilitation, were adequately reflected in the two year period that was potentially available for his release on parole. 43 For this court to intervene, in order to reduce the proportions between the non parole period and the head sentences, either individually or as a whole, would result in a minimum period of imprisonment which would fall below that appropriate to reflect the total criminality involved. That, it has been accepted, should not occur: See Morrissey NSW CCA 15 July 1994 and McDonald NSW CCA 12 October 1998. 44 I would, accordingly, grant leave to appeal but I would dismiss the appeal. 45 GROVE J: I agree. 46 WOOD CJ AT CL: The order of the court will, therefore, be as I have proposed.

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