6 February 2004
REGINA v BRETT JAMES FITZGERALD
Judgment
1 SULLY J: This is a Crown appeal against the asserted inadequacy of a sentence of imprisonment passed upon the respondent, Mr. Fitzgerald, by his Honour Judge Walmsley SC on 20 May 2003. The appeal raises various issues in connection with section 66EA of the Crimes Act 1900 (NSW). Section 66EA was inserted into the Crimes Act by the Crimes Legislation Amendment (Child Sexual Offences) Act 1998 (NSW). At the date of the respondent's sentencing, the section provided relevantly:
" 66EA (1) A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years.
(2) It is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.
(3) It is immaterial that the conduct on any of those occasions occurred outside New South Wales, so long as the conduct on at least one of those occasions occurred in New South Wales.
(4) In proceedings for an offence against this section, it is not necessary to specify or to prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.
(5) A charge of an offence against this section:
(a) must specify with reasonable particularity the period during which the offence against this section occurred, and
(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.
(6) In order for the accused to be convicted of an offence against this section:
(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes at least 3 separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting a sexual offence in relation to a particular child of a nature described in the charge, and
(b) the jury must be so satisfied about the material facts of the 3 such occasions, although the jury need not be so satisfied about the dates or the order of those occasions, and
(c) if more than 3 such occasions are relied on as evidence of the commission of an offence against this section, all the members of the jury must be so satisfied about the same 3 occasions, and
(d) the jury must be satisfied that the 3 such occasions relied on as evidence of the commission of an offence against this section occurred after the commencement of this section.
(7) In proceedings for an offence against this section, the judge must inform the jury of the requirements of subsection (6).
(8) A person who has been convicted or acquitted of an offence against this section may not be convicted of a sexual offence in relation to the same child that is alleged to have been committed in the period during which the accused was alleged to have committed an offence against this section. This subsection does not prevent an alternative verdict under subsection (10).
(9) A person who has been convicted or acquitted of a sexual offence may not be convicted of an offence against this section in relation to the same child if any of the occasions relied on as evidence of the commission of the offence against this section includes the occasion of that sexual offence.
(10) If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence against this section, committed a sexual offence, the jury may acquit the person of the offence charged and find the person guilty of that sexual offence. The person is liable to punishment accordingly.
(11) Proceedings for an offence against this section may only be instituted by or with the approval of the Director of Public Prosecutions.
(12) In this section:
child means a person under the age of 18 years;
sexual offence means any of the following:
(a) an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 66A, 66B, 66C, 66D, 66F, 73, 74, 78H, 78I, 78K, 78L, 78N, 78O, 78Q or 80A
(b) an offence of attempting to commit an offence referred to in paragraph (a),
(c) an offence under the law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraph (a) or (b)."
2 The indictment which was presented against the respondent charged that between 24 November 2001 and 18 June 2002, at Ermington in this State, and on three or more separate occasions occurring on separate days during that period, he had engaged, in relation to a named child, in conduct that constituted a sexual offence. The offending conduct was particularised in the indictment as having been constituted by:
· An act of indecent assault; and
· Six acts of sexual intercourse without the victim's consent; with knowledge that the victim was not consenting; and in circumstances of aggravation, namely that the victim was under the age of 16 years.
3 The respondent pleaded guilty to the section 66EA offence thus charged against him. He stood for sentence on 20 May 2003, and was sentenced to imprisonment for 6 years and 9 months, with a non-parole period of 3 years and 6 months, both the head sentence and the non-parole period being dated so as to commence on 23 June 2002.
4 The material facts were, and are, essentially undisputed. It is convenient to adopt the following summary made by the learned sentencing Judge:
"The offender was in a relationship with the victim's mother for ten years and stayed at her home on a regular basis. During that time he assumed the role of step-father to the victim. Between 25 November 2001 when the victim was aged fourteen years and nine months and 17 June 2002 by which time she was fifteen years and four months, the offender is said to have committed on her seven sexual offences. The first involved an indecent assault whilst they were both at the victim's home. He told her to remove her clothes, he did the same and rubbed his penis on the outside of her vagina. The event occurred on the victim's mother's bed. About three weeks later, in December 2001, on the same bed the offender penetrated her vagina with his penis, masturbated and ejaculated on her stomach. At about the same time the third incident occurred. On this occasion the offender put tape over the victim's mouth, penetrated her vagina with his penis, withdrew it and ejaculated on her stomach. This event occurred on the kitchen floor of the victim's house. Between December 2001 and June 2002, again on her mother's bed, he again penetrated her, withdrew his penis and ejaculated on her stomach. This incident he video taped. He told her if he video taped the incident he would see he was "sick so he would not do this again".
Also, between December 2001 and June 2002 the offender took the victim to a park in his vehicle and had sexual intercourse with her on the back seat. Again he withdrew his penis and ejaculated on her stomach. Between April 2002 and June 2002 in her mother's bedroom the offender had sexual intercourse with her again, on this occasion using a lubricant on his penis and telling her that this "won't hurt as much". Again he withdrew and ejaculated on her stomach.
Finally, on 17 June 2002 at about 2 a.m. he woke the victim and took her to the kitchen. The victim had by then notified the police of the earlier incidents. She told the offender this, and he said "I want to do it one more time". He had intercourse with her on the kitchen floor and again withdrew and ejaculated on her stomach.
During interviews with the victim and with the offender each gave the police differing numbers of times when sexual assaults had occurred. The Crown submitted that there were a number of aggravating factors, first, the offender was in a position of trust as her de facto step-father and in a position to exercise authority over her. Secondly, when the third sexual offence occurred, namely, that in December 2001 on the kitchen floor of the home, the offender put tape over the victim's mouth so she would not scream. Thirdly, during the fourth offence the offender had a video camera near-by switched on recording the event. Fourthly, on the occasion in June 2002 the offender told the victim if her mother woke up he would kill her mother and kidnap the victim. Fifthly, the final offence occurred at a time when the offender knew the victim had made a complaint about him. Sixthly, the offences occurred relatively frequently over the period of time set out above.
The evidence was somewhat uncertain about frequency and regularity. The victim told police that before he put his penis in her vagina there had been five, maybe, occasions when he had rubbed his penis on the outside of her vagina and that there were five times when he had vaginal intercourse with her in his car. The offender agreed rubbing incidents had occurred but not as often. He put it at once a week over a three week period. As to vaginal intercourse the offender said this had occurred three to four times. He later, although this is unclear, (it may be he was referring to all incidents of sexual contact), gave the police an estimate of "around twelve times maximum or fifteen".
There is, essentially, no dispute about these matters. The offender was taken to them by police in a record of interview and he admitted putting tape on the victim's mouth, though he said it was taken off before sex occurred. He admitted using a video camera on one occasion and that he made a threat to kidnap the victim, though not to kill her mother. He did not admit he knew the victim had gone to the police when he last assaulted her, but it is clear from the record of interview that he was vague about some matters of detail. Before me, the accused made no effort to dispute these matters."
5 The gravamen of the Crown appeal, although it is not the only point made by the Crown in support of the appeal, is that the learned sentencing Judge erred in law in his Honour's basic approach to the task of sentencing an offender for a section 66EA offence.
6 His Honour was referred in argument to a South Australian decision: R v D (1997) 69 SASR 413. He followed the approach that was there approved by the Court of Criminal Appeal of South Australia. His Honour said:
"The Crown drew my attention, however, to the equivalent South Australian provision, namely, s. 74 of the Criminal Law Consolidation Act (1935). That provision carries a maximum penalty of life imprisonment, though it carries the sentencing principle that the term of imprisonment be proportionate to the seriousness of the offender's conduct (See s. 74 subs. 7)
In the only decision I was taken to on a section equivalent to s. 66EA, namely, The Queen v D (1997) 69 SASR 413, the Court of Criminal Appeal of South Australia, consisting of chief Justice Doyle and Justices Millhouse and Bleby JJ, after a not dissimilar set of circumstances, imposed a head sentence of five years with a non-parole period of three years and six months.
Dealing with the question of what sentencing approach ought to be taken, Doyle CJ, with whom Bleby J agreed, said at page 9,
"It is not necessary to identify the number of offences committed with any precision although if that can be done readily there is no reason why it should not be done. An approach which requires one to identify the number of offences with precision would simply re-introduce the very problem at which s. 74 is aimed. It is sufficient to make an assessment in a general way of the frequency of the offending. In my opinion one should then consider the likely sentence if the offender fell to be sentenced under the provision that creates the relevant offence or offences as distinct from under s. 74. And on that basis that the offender is sentenced in respect of a number of representative offences, those offences being treated as offences which are part of a course of conduct involving similar conduct. In this way the Court will still have regard to the duration of the offending, the seriousness of the offences involved and the frequency of the offending, but the Court will not be accumulating a series of maxima produced by multiplying the number of individual offences that can be identified by the applicable statutory maxima."
I am satisfied the offender offended approximately monthly over a seven month period. Were he to be dealt with in respect of a number of representative offences as part of a course of conduct involving similar conduct and were he to be sentenced under s. 61J and s. 61M of the Crimes Act he would face a term of imprisonment of between seven and ten years."
7 The Crown submits:
"It is submitted that the proper approach is not that adopted in South Australia. The proper approach, it is submitted, is to sentence an offender for the whole of the relevant conduct proved subject to the maximum penalty of 25 years imprisonment. It is the nature and gravity of the conduct involved and the frequency and duration of it which will determine where on the scale of seriousness a particular offence sits. It may be useful to look at the sentences imposed in respect of the underlying offences as well as the nature of those offences themselves for assistance in gauging the seriousness of the conduct but those sentences would not be determinative of the sentence to be imposed under Section 66EA."
8 The substance of the respondent's submission is:
"11. It is submitted that a like approach should be adopted to s.66EA. It is not the aggregate criminality revealed by the seven sub-offences which is the primary consideration for sentence. Rather, it is the maintaining of the sexual relationship, defined as it was by the seven relevant sexual offences, over the time period that it prevailed that sets the objective parameters of the criminality.
13. As a general proposition it is submitted that an offender who faces one count under s.25A should fare no worse than if he faced multiple counts of what might be described as simple or single offences. There is no reason to assume that Parliament intended that the same sexual misconduct if charged under s.66EA should result in a higher penalty than if charged under the substantive alternative individual sections."
9 When the insertion of section 66EA into the Crimes Act was proposed to Parliament, the Attorney-General explained as follows the reason for the proposal:
"The offence of persistent sexual abuse of a child will enable the prosecution of offenders who were previously not able to be prosecuted due to a technicality. That technicality arose from the 1989 decision of S. v The Queen . In that case, the High Court of Australia decided that particularity was required in trials of child sexual assault to the same degree as in trials of other offences.
Honourable members will appreciate that children are often unable to give precise details of offences, particularly where the alleged sexual assaults took place over many years, involved numerous occasions of abuse, and the accused was in a position of trust or authority. The effect of the High Court's decision is that, if the prosecution is unable to prove particulars of the time, date and place of an allegation of child sexual abuse, then the accused cannot be prosecuted. As a result of the High Court's decision, every Australian jurisdiction, except our own, created a new offence along the lines of persistent sexual abuse of a child. The Government is of the firm view that the time has come to introduce legislation to better protect children. This bill accomplishes that purpose. By creating the offence of persistent sexual abuse of a child, we recognise the reality of continuing or prolonged child sexual abuse."
10 The decision of the High Court of Australia in S v The Queen to which the Attorney-General refers, concerned facts which are summarised sufficiently for present purposes in the headnote to the report:
"An indictment charged a father with three counts of carnal knowledge of his daughter. Each count charged one act of carnal knowledge on a date unknown within a specified period of twelve months, namely 1 January 1980 to 31 December 1980, 1 January 1981 to 31 December 1981 and 8 November 1981 to 8 November 1982. The trial judge rejected the accused's application for an adjournment pending the supply of particulars and his further application that the prosecutor nominate or identify the acts the subject of the counts. The complainant gave evidence of two specific acts of intercourse, but there was no evidence to link either with any one of the specified periods. She also gave evidence of numerous further acts over a period of two years until she left home in November 1982. She could not remember details or frequency other than that it occurred "every couple of months for a year". The accused was convicted on each count."
11 Of the five Justices who sat to hear the particular appeal, four were of the opinion that there had been a clear miscarriage of justice. That outcome did not turn upon a mere technicality, the gist of which was, in the Attorney-General's words, "that particularity was required in trials of child sexual assault to the same degree as in trials of other offences". The outcome turned, rather, upon substantial failures by the prosecution and by the trial Judge to accord procedural fairness to S in connection with his trial. It will suffice, once again, to take from the headnote the substance of the relevant propositions that the majority Justices endorsed:
"(1) In the absence of any act or acts being identified as the subject of an offence charged in an indictment, the Crown cannot lead evidence that is equally capable of referring to a number of occasions, any one of which might constitute an offence the legal nature of which is described in the charge, and invite the jury to convict on any one of them.
(2) Even if such act or acts are identified, serious questions of admissibility arise; the jury must be instructed as to the proper use to be made of such evidence, if admitted."
12 Leaving aside for the moment any relevant curial authority, it seems to me that the enactment of section 66EA, if it really is intended to make fair by statute what the High Court held to be unfair in the absence of some such provision, entails these propositions: