R v Wright

Court of Criminal Appeal (NSW)|2017-04-05|Before: Bathurst CJ, Hulme J, Beech-Jones J, Jones J

Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Respondent) File Number(s): 2014/332836 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 2 December 2016 Before: Williams SC DCJ File Number(s): 2014/332836

Judgment

BATHURST CJ: I have read the judgment of Beech-Jones J in draft. I agree with the orders proposed by his Honour and with his Honour's reasons.
R A HULME J: I agree with Beech-Jones J.
BEECH-JONES J: This judgment concerns a Crown appeal against a sentence imposed by his Honour Judge Williams SC DCJ on the Respondent for three offences involving the sexual abuse of a fourteen year old girl. The publication of material capable of identifying her is prohibited (Crimes Act 1900, s 578A; Children (Criminal Proceedings) Act 1987, s 15A). Accordingly she will be referred to as "MM". These are not her initials.

The Offences

Placed before the sentencing judge was an agreed statement of facts. A summary of those facts follows.
The Respondent was born in 1971. He was 42 years of age, and MM was 14 years of age when the offences were committed. During the period of the offending, MM regularly resided with her father during holidays and on weekends. The Respondent was a friend of MM's father and often attended her father's house. The agreed facts record that in December 2013 the Respondent went to kiss MM on the cheek. She turned her head and he kissed her on the lips. He apologised. No charge was laid against the Respondent for this conduct. However, later that month the offender and MM were alone in the lounge room of her father's home. According the facts, something on the television reminded MM of the recent death of her grandfather and she began to cry. The Respondent kissed her, touched her breast on the outside of her clothes and she placed her hand on his penis outside his clothes. They stopped when MM's father came out of his room. This conduct constituted the first of the offences under s 61M(2) of the Crimes Act included on the Form 1.
The following morning the Respondent and MM arranged to meet at the motel room where the Respondent was living. According to the facts they "had penile/vaginal intercourse" but MM "stopped when she received a text from her father" implying that he would meet her at the beach in 5 minutes. This conduct of the Respondent constituted the first offence under s 66C(3).
The next day, after MM's father and brother left for work, the Respondent collected MM and took her to his residence. They had penile/vaginal intercourse. She returned to her home at 4am the next morning. This conduct of the Respondent constituted the second offence under s 66C(3).
On a date between 27 December 2013 and 31 March 2014, the Respondent attended at MM's home to accompany her and the rest of her family to the beach. According to the facts, while they were shopping for bread rolls the Respondent "grabbed her on the buttocks and she asked him not to do that in front of people". This conduct constituted the second of the offences under s 61M(2) included on the Form 1.
On another date between 27 December 2013 and 31 March 2014, MM attended at the Respondent's motel room. They had penile/vaginal intercourse. This conduct constituted the third of the offences under s 66C(3). A few weeks later, early in the morning MM let the Respondent into her house after her father and brother had gone to work. The agreed facts record they "slept together" but do not state they had sex. However, according to the agreed facts "at [MM's] suggestion they went to the [Respondent's] home" and "[w]hen they arrived ... they had penile/vaginal intercourse". This constituted the fourth offence under s 66C(3) of the Crimes Act.
As noted, the fifth offence was procuring a child for sexual activity. It was committed over the period 27 December 2013 to 16 April 2014. During that period the Respondent and MM exchanged a large number of text messages and other electronic communications which, according to the agreed facts, the "content of which generally reflected and fostered closeness between them". The facts accurately record that the communications "indicate that the [Respondent] and [MM] treated their relationship as analogous to a boyfriend-girlfriend relationship". In some of the texts they profess their feelings for each other. In others they refer to sexual acts.
According to the agreed facts, by April 2014 communications between them reduced possibly because the Respondent and MM understood that the police might be investigating them. By July 2014, the Respondent and MM had fallen out. On 27 July 2014, the Respondent sent to MM's mother's mobile phone an image of her breast and another image of her buttocks. The images were accompanied by texts complaining that MM had been messaging and calling him repeatedly as well as sending him images. This conduct constituted the offence of disseminating child abuse material under s 91H(2) that was included on the Form 1.
MM was interviewed by police on 24 April 2014, 12 August 2014 and 25 August 2014. In the first two interviews she described some of the events set out above but denied that any sexual or indecent conduct occurred between the Respondent and herself. However, in the third interview she disclosed the balance of the events set out in the agreed facts.
The Respondent was arrested on 11 November 2014. When interviewed, he denied having any sexual relations with MM. He was initially refused bail until being released following a grant of bail on 7 August 2015. He was again refused bail on 25 July 2016 following the entry of his plea of guilty.

The Sentencing Judgment

The sentencing judge described the facts of the offences including those listed on the Form 1. I note the following points about the sentencing judgment.
First, his Honour allowed a 15% discount on account of the Respondent's plea of guilty.
Second, his Honour noted the Respondent's background and criminal history. From age 15 until he was 26, the Respondent engaged in "broad ranging criminal behaviour" including offences involving violence, breaches of public order and stealing motor vehicles. According to his Honour, the Respondent spent the majority of his youth incarcerated. His Honour stated that the Respondent then ceased offending for six years before committing "relatively minor public order offences" and a drink driving offence in 2006 and 2007. He then ceased offending before being convicted of stalk and intimidate in April 2014. According to his Honour, the Respondent lived a "transient lifestyle" for many years and had only "sporadic contact with his family throughout his youth and early adulthood". The Respondent completed year 12 in juvenile detention. His Honour stated that the Respondent had a number of "difficult relationships" over the two decades prior to the offences although he had a close relationship with his 12 year old daughter.
Third, his Honour referred to the Respondent's experiences in custody after his bail was revoked. The Respondent asked to be placed in protective custody presumably out of a concern that he would be targeted as a sex offender. Placed before his Honour was a letter from Corrective Services which indicated that inmates in protective custody "have limited access to programs and services" although they have access to "essential services" including library, visits and welfare services. In October 2016, the Respondent was admitted to hospital after having symptoms consistent with a heart attack. While, according to his Honour, "no evidence emerges as to any lasting effects of that incident", his Honour accepted that it should be taken into account "and may well require monitoring and treatment".
Fourth, his Honour appears to have accepted the finding of a psychologist that the Respondent presented a low risk of reoffending. The psychologist also concluded that the Respondent would not benefit from "offence specific treatment for his sexual offending behaviour" but was more likely to benefit from treatment that "targets his substance abuse". His Honour found the Respondent has "reasonable prospects of rehabilitation".
Fifth, his Honour found that the Respondent's offences were "not at the lowest end of the spectrum, but towards the lower end of the spectrum of objective seriousness" for such cases.
Sixth, his Honour made a finding of special circumstances for the purposes of s 44(2) of the Sentencing Act based on the Respondent's "health issues", "the need … for psychological treatment" and his detention in protective custody.
Seventh, his Honour referred to certain sentencing statistics that were placed before him stating: "I have been provided with a range of statistics in relation to these particular offences, recognising of course that they are, as often described in the authorities, a relatively blunt tool, there is a reasonable size class of cases to provide some assistance in the sentencing process, both in respect of the head sentence and the non-parole periods."

Was the Sentence Manifestly Inadequate?

As noted, the sole ground of appeal is that the sentence was manifestly inadequate. This ground amounts to a contention that the orders of the sentencing judge were "unreasonable or plainly unjust". Intervention by this Court on this basis "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases" but instead is warranted only if "the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons" (Wong v R [2001] HCA 64; (2001) 207 CLR 584 at [58] cited in Hili v The Queen [2010] HCA 45; 242 CLR 520 at [58] to [59]).

Characterisation of Objective Seriousness

As stated, the first particular of the Crown's contention that the sentence was manifestly inadequate was that his Honour erred in characterising the offences as "towards the lower end of the spectrum of objective seriousness". In relation to the offences under s 66C(3) of the Crimes Act, the Crown pointed to: the age of MM as being closer to the minimum age for the offence (14) rather than the maximum (16); the age difference of 28 years between MM and the Respondent; the development of the relationship between them via the Respondent gaining the trust of her father; the form of sexual intercourse involved; the immaturity of MM, and the (limited) planning involved. With the offence under s 66EB(2), the Crown also pointed to the age difference and immaturity of MM as well as the period and number of communications.
The Crown also noted that the sentencing judge took into account that the Respondent did not "set out to cultivate or groom" MM, that he could not be described as a "sexual predator" and MM appears to have "been obsessed with him". The Crown accepted that, notwithstanding her inability to consent, MM's "willing participation" was relevant to an assessment of objective seriousness (see Wakeling v R [2016] NSWCCA 33 at [47]) but contended that it was worthy of little weight given the significant age difference and the damaging nature of such sexual relationships (R v Nelson [2016] NSWCCA 130 at [23] per Basten JA). The Crown otherwise noted that his Honour accepted that some of the offences took placed within a short period but did not refer to its submissions that, over the course of the "relationship", the Respondent had opportunity to reflect and desist but nevertheless continued.
In referring to MM's supposed immaturity, the Crown sought to demonstrate that the communications between her and the Respondent indicated that MM was particularly immature for her age. I do not accept that material established that. That said provisions such as s 66C(3) assume young people are "immature" in the sense of needing protection from having to make choices about engaging in sexual activity. The other points made by the Crown were well founded. Of those matters, the duration of the offending and the age difference between the Respondent and MM were clearly matters that elevated the seriousness of the offences.
One potential problem with his Honour's finding is the width of the phrase "towards the lower end of the spectrum". Such a finding is more suited to an offence for which a standard non‑parole period is applicable rather than the offences the subject of this appeal. Read literally it could include any offence below the middle of the range. Even allowing for that possibility I accept that his Honour erred in characterising the offending as anything less that within the middle of the range of offending of this kind. The Respondent was three times older than MM and he exploited her over a sustained period. His offences were serious examples of contraventions of s 66C(3).

Special Circumstances

The second particular of the Crown's complaint of manifest inadequacy concerns his Honour's finding that there were special circumstances that satisfied s 44(2B) of the Sentencing Act such as to warrant a variation in the ratio of the non-parole period to the total sentence below three quarters. In this case, the ratio was just over 56 per cent.
The three matters said to justify the finding of special circumstances are noted above. In relation to the Respondent's ill health, the Crown submitted that there was "no evidence of any ongoing effects [of the heart incident] or that, if there were, that these could not be adequately managed by Justice Health". This overstates the significance of this issue to the sentencing judge's finding of special circumstances. The clinical records concerning the Respondent's admission were tendered at the sentencing hearing. They indicated that the Respondent had suffered a myocardial infarction which is not insignificant given the Respondent's relatively young age. His Honour accepted that there was no evidence of any ongoing effect but also considered that it "may well require monitoring and treatment". While treatment may be available in custody his Honour was entitled to consider that it could be better monitored if the Respondent was in the community. Of itself, this was not capable of constituting special circumstances but it was capable of contributing to such a finding.
The Crown also contended that his Honour was not entitled to have regard to the conditions of the Respondent's custody. The Crown submitted that it could not be assumed that the Respondent's time in protective custody would be more onerous for him than it would be for other prisoners and that evidence to that effect was required (citing R v Mostyn [2004] NSWCCA 97; 145 A Crim R at [179] to [180]). The short answer to that contention is that there was evidence before the sentencing judge being the letter noted above (at [22]) albeit that the level of deprivation demonstrated by that letter was not great.
Finally in relation to this particular the Crown contended that the sentencing judge erred in having regard to the Respondent's need for psychological treatment as a matter justifying a finding of special circumstances. In the sentencing judgment his Honour specifically referred to and adopted the opinion of the psychologist that the Respondent would not benefit from "offence specific treatment for his sexually offending behaviour". His Honour accepted the psychologist's opinion that the Respondent would benefit from "treatment that targets his substance abuse (away from other sex offenders and people who abuse alcohol and other substances)". Earlier in the report the psychologist noted that the Respondent had a history of binge drinking, that much of his offending had occurred while he was intoxicated and that his drinking habits had caused "serious difficulties in reference to his relationships".
The Crown submitted that "for a finding of special circumstances to be made, there must be some particular utility in a period of parole longer than that which would flow from the ordinary operation of [the] statute" (Hoskins v R [2016] NSWCCA 157 at [88]). It contended that there was "no evidence" that the Respondent's binge drinking problem and need for individualised treatment required an extended time on parole. However, the psychologist's opinion was the treatment would be most effective if the Respondent was removed from other prisoners and was receiving treatment "in the community in combination with the structure and routine of employment and the support of his family and friends". This was sufficient to support his Honour's conclusion.
The finding of special circumstances was undoubtedly generous to the Respondent. Considered individually, none of the three matters relied on by his Honour justified that finding. Considered in combination, they only just did so. Nevertheless, the finding involved an evaluative assessment and the exercise of a discretion. It follows that to demonstrate that it was erroneously made the Crown had to establish an error of the kind stated in House v The King [1936] HCA 40; 55 CLR 499 at 505. It did not do so.

Error in Aggregating

As noted, the Crown also contended that the sentencing judge erred in his approach to aggregating the indicative sentences when fixing the aggregate sentence and non‑parole period.
Subject to one matter, in its written submissions the Crown conceded that the "notional starting points of each of the indicative sentences arguably fell within the wide range of appropriate sentences extant for this type of offending". The qualification to this concession was a contention that the sentences for the second to fourth offences under s 66C(3) should not have been less than the sentence for the first given the opportunity the Respondent had to reflect upon his actions and desist and that otherwise the uniformity of the sentences suggest that a "blanket" assessment was made. This qualification can be put aside. The greater sentence for the first offence was clearly justified by reference to the Form 1 offences (Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115). Otherwise, his Honour was entitled to take the view that there was nothing to differentiate between the second, third and fourth offences.
However in her oral submissions the Crown Prosecutor withdrew the concession that the indicative sentences fell within the range of appropriate sentences. The contention that they were manifestly inadequate was not developed beyond submitting that, because his Honour erred in characterising the objective seriousness of the offences under s 66C(3), then it followed that the indicative sentences must have been outside the applicable range. I have already accepted that his Honour so erred but that conclusion that the indicative sentences were outside the range does not necessarily follow. Nor does it necessarily follow that, even if they were outside the range, this leads to error in the fixing of an aggregate sentence (PD v R [2012] NSWCCA 242 at [44]). In the absence of further submissions from the Crown concerning the indicative sentences this cannot be taken further.
Instead the Crown's submissions were directed towards the level of accumulation of the indicative sentences that yielded the aggregate sentence. In submitting that the aggregate sentence and non‑parole periods were inadequate, the Crown contended that, as the aggregate sentence of 39 months is only 6 months longer than the indicative sentence of 33 months, there must have been a failure to have a proper regard to principles of totality in fixing the sentence (see R v Stoupe [2015] NSWCCA 175 at [101] per Johnson J).
I agree. In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27], Howie J (with whom Adams and Price JJ agreed) stated: "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."
In this case, the sentence for the first offence under s 66C(3) certainly did not "comprehend and reflect" the criminality of all the offences. Even if each of the individual sentences was within the applicable range, they could only have been towards the bottom of that range. To only accumulate those sentences by 6 months had the result that the Respondent was not being sentenced for the crimes he committed, namely his persistent and deliberate sex offending upon a 14 year old girl over a period of many months. Instead he received an aggregate sentence that was, at most, only appropriate for an offender who had had a once off sexual encounter with a girl of her age. His criminality was significantly greater than what could be reflected by an aggregation of 6 months. In the end result, the aggregate sentence was so inadequate that it can only be the result of the "misapplication of principle" (Wong supra). Further, the inadequacy in the fixing of the aggregate sentence resulted in the fixing of an inadequate non‑parole period notwithstanding that it was open to his Honour to find special circumstances.
I would uphold the Crown's ground of appeal.

The Residual Discretion

The Crown submitted that the residual discretion not to intervene should not be exercised (CMB supra). It contended that there was no delay in the institution of its appeal and that the maintenance of such a plainly inadequate sentence has the "capacity to undermine public confidence in the proper administration of criminal justice" .
At the hearing of the appeal an affidavit sworn by the Respondent on 23 March 2017 was read along with an affidavit from his solicitor annexing documentary material supporting the contents of the Respondent's affidavit. In his affidavit the Respondent stated that his non‑parole period is due to expire on 26 August 2017. He explained that, due to current classification, he is incarcerated at Long Bay Correctional Centre and that is likely to continue, irrespective of his classification, because his heart attack means that he must remain close to specialist medical services. He stated that after he was sentenced he was threatened by other prisoners who became aware of media reports about his case. The Respondent stated that he was held in "Limited Association Protection" which involved him remaining in his cell 18 hours a day, being denied access to the oval, library or work programs and only exercising with 50 to 60 other prisoners in a concrete yard that was 30 metres by 10 metres in size. In mid-January 2017, the Respondent was transferred to the Special Management Area Protection wing of Long Bay. He states that his conditions then improved. He was able to work and access facilities. The Respondent also states that, consistent with the psychologist's report noted above, he has rejected attempts to have him undertake an in‑custody sex offender's program. However, he has sought to undertake addiction programs. He accepts that he should attend counselling on his release. He has maintained contact with his daughter since being imprisoned.
With the exception of the Respondent's experiences in Limited Association Protection, the balance of his affidavit is consistent with the assessment made by the sentencing judge of the Respondent's likely experiences in custody. While it raises matters warranting leniency, the affidavit does not add much to a consideration of whether or not to exercise the residual consideration. It can be assumed that some hardship would follow from having a sentence extended so close to the expiry of the non‑parole period. That said there was no reference to any such hardship in the Respondent's affidavit.
However, one matter of particular significance to the exercise of the residual discretion concerns how the error established by the Crown appears to have occurred. As noted above, in the sentencing judgment, his Honour made reference to the "assistance" he derived from the sentencing statistics for "a reasonable size class of cases" in fixing the both the head sentence and the non‑parole period.
During his oral submissions to the sentencing judge, Counsel for the Respondent made reference to the Judicial Information Research System ("JIRS") sentencing statistics but stated that he did not have them available to tender. His Honour indicated he had statistics available and that "looking, very broadly, the mid-point for multiple offences appears to be 42 months [for] the head sentence and the mid-point for non-parole periods appears to be 18 months". Subsequent to this, the Crown's representative indicated that they would provide sentencing statistics over the luncheon adjournment "particularly ones that break down statistics for more than one offence". Counsel for the offender then replied. During the reply, his Honour repeated his understanding as to the median head sentence and non-parole period for "multiple offences against s 66C(3)".
It seems that, by agreement, sentencing statistics were provided to the sentencing judge over the luncheon adjournment. When the matter resumed, the Crown's representative noted that the statistics were "now before your Honour". The Crown made reference to one set of statistics that referred to "multiple offences with the age restriction being 41 to 50 years of age". There was no attempt to clarify or correct his Honour's statement about the mid-point for head sentences and non-parole periods for multiple offences under s 66C(3).
The sentencing statistics which his Honour referred to were two entries from JIRS referrable to s 66C(3), one which was entitled "Aggregate/Effective - Terms of Sentence Multiple Offences" and the other entitled "Aggregate/Effective - Non-Parole Periods/Fixed Terms Multiple Offences". The former indicated a median of 42 months and the latter a median of 24 months (not 18 months as stated by his Honour). The entries from JIRS referred to by the Crown were also referrable to s 66C(3). One of them was entitled "Aggregate/Effective - Terms of Sentence Multiple Offences 41 to 50 years" and the other entitled "Aggregate/Effective - Non-Parole Periods/Fixed Terms Multiple Offences". The former indicated a median of 48 months and the latter a median of 30 months.
Unfortunately, all the parties proceeded upon a misapprehension as to the effect of the sentencing statistics for multiple offences. In a section entitled "Explaining the Statistics", the JIRS database explains that a reference to "multiple offences" is not a reference to multiple offences of a particular kind but is instead a reference to "any additional offence - committed by the offender for which a sentence is imposed" (other than offences included on a Form 1). However, in this case the parties and his Honour proceeded on the basis that the reference to "multiple offences" was to multiple s 66C(3) offences.
In this case, the Respondent was not just an offender being sentenced for multiple offences one of which was s 66C(3), but instead was an offender being sentenced for multiple contraventions of s 66C(3). That was a significant difference. The comments in the sentencing judgment noted at [26], the repeated references to these statistics by his Honour during the sentencing hearing and the similarity between the median figures suggested by his Honour and the sentences ultimately imposed suggest that his Honour was significantly influenced by the misunderstood statistics.
His Honour flagged his possible reliance on the sentencing statistics and his erroneous interpretation of the statistics at an early stage of the sentencing hearing. The Crown had ample opportunity to correct his Honour's misapprehension but instead reinforced it. This took place in a context where the "Crown … [had] a duty to assist [the] sentencing court to avoid appealable error" (CMB at [38]). This misapprehension of the range of sentences imposed for multiple contraventions of s 66C(3) influenced his Honour in the imposition of an aggregate sentence that was manifestly inadequate.
In these circumstances the Crown has not demonstrated that the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.

Conclusion

It follows that I would dismiss the appeal.
The order that I propose is: (1) The Appeal be dismissed.

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: 19 May 2017

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