Regina v ART

A.R.T. FILE NUMBER(S) : CCA 60128/03 COUNSEL : A Francis - Applicant D Howard - Crown SOLICITORS : S O'Connor - Crown

LOWER COURT District Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Sides DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60128 of 2003

Grove J Shaw J

A R T Judgment 1 Shaw J: This is an application by the applicant to appeal against the severity of a sentence imposed by his Honour Judge Sides on 18 February 2003 in the District Court sitting at Campbelltown following a plea of guilty to one charge and one further offence, committed in close proximity to the offence alleged in the substantive charge specified in the Form 1. The offences occurred on 9 and 10 June 2002 at Ulladulla and concerned sexual intercourse with the applicant's five-year-old step-sister and her friend, sleeping in the same bedroom where the applicant resided. The applicant was seventeen-and-a-half years of age at the relevant time. He has no prior criminal history. 2 The trial judge imposed a sentence of two years with a non-parole period of nine months, to be served in a juvenile detention centre pursuant to s 19 of the Children (Criminal Proceedings) Act 1987. 3 These were grave offences involving very young girls, with potentially serious consequences for the victims. In my opinion, it was obvious that a custodial sentence had to be imposed and, despite the youth of the offender, one which was not illusory but of substance. My initial reaction to the sentence was that the applicant was treated leniently by the trial judge. 4 I note that the applicant accepts that Sides DCJ dealt with the matter according to law and 'in respect of which it is not contended his Honour fell in to error ...' 5 Admittedly the episodes on the Sunday evening in question were brief. It is also apparently the case that when the first complainant indicated that the activity should stop, the applicant complied. 6 The first sentencing error which the applicant relies upon is the way his Honour dealt with the offence specified on the Form 1. His Honour took the view that the Court was required to consider the offence on the Form 1, and this could hardly be in dispute. He said that the Court should not merely pay 'lip service to it'. His Honour accepted that it was an offence committed at about the same time as the offence on the indictment, but in relation to a different individual. Accordingly, his Honour reasoned that the prima facie head sentence determined (i.e. fifteen months) should be extended by another nine months to reflect the offence on the Form 1. His Honour said this is an extension which was significantly less than would have been imposed had the matter been the subject of a separate charge. 7 The applicant draws attention to what was said by Spigelman CJ in Attorney General's Application Under Section 37 of Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 to this effect: ... the sentencing court is sentencing only for the principal offence and it is no part of the task for the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all offences and then apply a 'discount' for the use of the procedure. This is not sentencing for the principal offence."

8 However, this observation has to be seen in a more general context of what was said by the Chief Justice in that case. His Honour dealt with a number of considerations in relation to taking matters into account on a Form 1, which I would summarise as follows: (a) to take account of the Form 1 matters will usually result in the imposition of a longer sentence (or may alter the nature of the sentence) than would have been imposed if the primary offence stood alone. (b) it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. (c) the sentence that is appropriate for the charge on indictment, when one has regard to the Form 1 matters, would ordinarily result in increasing that sentence because the sentencing judge will place a great emphasis on the objective seriousness of the offence charged.

9 The focus must be on the 'principal offence' alone, as Simpson J said in R v Lemene (2001) 118 A Crim R 131 and repeated in R v Harris (2001) 125 A Crim R 27 at [27]: ... an offender who adopts the procedure is entitled to expect an additional penalty significantly less than would have been imposed had separate charges been prosecuted.

10 It has been said by the applicant in this case - and it has been a well-argued case - that the sentencing judge may have taken into account wrongly, or at least given excessive weight to, the question of general deterrence. It is true that in the Attorney General's Application case the Chief Justice said in [42]: The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.

11 What the Chief Justice made clear in [43] is that this was not a universal or exhaustive statement of the matters that can be taken into account when the sentencing court is having regard to Form 1 offences. His Honour said: I do not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge.

12 However, no additional elements for which that could have been so have been identified in submissions in this Court. 13 In short, it seems to me the focus is on the principal offences but the Court has regard to the additional matters specified in Form 1 and they may well result in a longer sentence than would otherwise have been the case. 14 This seems to me to have been, in substance, the approach taken by the sentencing judge in the present case. He extended the sentence by a period to reflect the matter on the Form 1, but took the view that this was an extension which was significantly less than that which would otherwise have been imposed if the matter had been the subject of a substantive plea of guilty. 15 In my opinion, the approach of the sentencing judge was not contrary to authority. 16 The second ground of appeal which has been propounded is the more general proposition that a lesser penalty is warranted in law. The focus of the argument is on the applicant's subjective circumstances. However, it seems to me that the sentencing judge has taken note of and given weight to all of the extenuating circumstances in a quite explicit manner. In particular, he had taken note of the early plea of guilty and awarded a twenty-five per cent discount as a result. He has noted the contrition of the applicant; his admissions to the police; his genuine efforts of rehabilitation and undertaking further study; other subjective factors, such as social isolation and poor self-image; the support of his relatives; and the absence of a prior criminal history. His Honour also noted the absence of a prior sexual experience. However, it has been concluded that the applicant understood that what he did was wrong and that this was no mere sexual experimentation. 17 A fair reading of the Remarks on Sentence would indicate his Honour gave conscientious thought to a sentence that might be appropriate in the circumstances of what was a serious case, albeit one with the extenuating factors mentioned. This is not a case of mental or intellectual disability, and in fact the applicant was of above average intelligence. It is true that the applicant was to be regarded as a juvenile, as the sentencing judge prescribed, but he was approaching adulthood. I think it is appropriate that he serve the sentence in a juvenile institution. 18 As I have said, I think the non-parole period, whatever view one might take of the head sentence, was relatively lenient and there is force in the submission of the Crown that the non-parole period was at the lower end of the range for offences of this type. 19 In the result, it is my view that the Crown submission is correct that no error has been demonstrated in the sentencing process in this case and I would conclude that leave to appeal be granted but the appeal be dismissed. 20 GROVE J: I would only wish to recapitulate, as has been mentioned by Shaw J, that the victims in this case were two little girls aged five years. 21 For myself, I find it impossible to come to a conclusion that the penalty imposed is one which was excessive to the extent that a lesser penalty would be warranted in law. 22 I agree with the orders proposed and those will be the orders of the Court. oOo

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