REGINA v. CAMPBELL [2005] NSWCCA 125

1 GROVE, J: I agree with Hall, J. 2 HOWIE, J: I agree with Hall, J. 3 HALL, J: On 21 December 2004, an application for leave to appeal against severity of sentence was filed on behalf of the applicant, Ian Stanley Bruce Campbell in respect of a sentence imposed on him by the District Court of New South Wales (Ellis, DCJ.) on 26 May 2004. 4 The applicant pleaded guilty to the following charges under the Crimes Act 1900 (NSW):- 1. Seven offences of aggravated indecent assault, contrary to the provisions of s.61M(1) of the Crimes Act 1900; and 2. One offence of assault occasioning actual bodily harm contrary to the provisions of s.59 of the Crimes Act 1900. 5 The maximum penalty for an offence under s.61M was, and is, seven years imprisonment, whilst the maximum penalty for an offence under s.59 was, and is, five years. 6 The applicant was sentenced to an effective total sentence of seven years imprisonment with a non-parole period of four years commencing 25 May 2004. The non-parole period will expire on 24 May 2008. 7 There are two grounds relied upon in the application:- Ground One: His Honour erred in failing to give sufficient weight to the applicant's rehabilitation during the delay between offending and sentencing. Ground Two: The sentence imposed was manifestly excessive. 8 The offences were committed between June 1993 and June 1996. The complainant was under the age of 16 years and the applicant in relation to her was in a position of trust as she had been orphaned following the death of both parents. The applicant, who is the brother of the complainant's mother, at material times had the care of the applicant and exercised authority over her. 9 In written submissions on behalf of the Crown findings contained in the Remarks on Sentence were summarised as follows:- "(a) The offences involved the actual or threatened use of violence (remarks on sentence, p.22; s.21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999). (b) The offences involved gratuitous cruelty (remarks on sentence, p.30; s.21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999). (c) The injury, emotional harm and damage caused to the complainant by the offences was substantial (remarks on sentence, p.30; s.21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999). (d) The applicant abused a position of trust and authority in relation to the complainant who was his niece and lived with him in his care and under his authority (remarks on sentence, p.30; s.21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999; Regina v. Dent (unreported, Court of Criminal Appeal, 14 March 1991) p.6; and Regina v. Muldoon (unreported, Court of Criminal Appeal, 13 December 1990) p.6). (e) The complainant was vulnerable by reason of being very young and having been orphaned by the death of both her parents (remarks on sentence, pp.2 and 21; s.21A(2)(1) of the Crimes (Sentencing Procedure) Act 1999). (f) The offences involved a series of criminal acts (remarks on sentence, p.30; s.21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999)." 10 In the written submissions made on behalf of the applicant, it is correctly noted that the applicant was of prior good character and had no prior convictions. Although the offences were committed between June 1993 and June 1996, the applicant was not charged until December 2001. The complainant first made a formal complaint on 6 November 2001. 11 In the reasons on sentence given on 26 May 2004, the court set out in considerable detail the facts concerning each of the eight counts and it is clear that in the commission of the offences the applicant did employ violence, emotional manipulation and exploited the vulnerability of the complainant repeatedly over the period of three years, she being vulnerable both because of her age and by reason of her orphaned status. As a result of the offences, the complainant has suffered from the symptoms of post-traumatic stress disorder. 12 The sentencing judge described the applicant as having engaged in serious criminality "in a self-indulgent and pitiless manner, took from the complainant her innocence, her formative years and left her with life long scars" and observed that the offences were committed with "violence, emotional manipulation and blackmail" (remarks on sentence, p.22). 13 The learned judge also stated:- "In my view, the criminality of these offences is within the worst category of the range of possible offences for aggravated indecent assaults. There was ongoing criminality through 1993 to 1996. It would seem that she was simply used and abused rather than loved and cared for." 14 The applicant was aged 54 as at the date of sentence. It is clear from the evidence that from at least 1992 he suffered the effects of alcoholism and depression and that it was the grossly excessive consumption of alcohol which contributed to him acting in the way that he did. As the learned sentencing judge observed, whilst alcohol may provide an explanation for the offence, it neither provided an excuse nor did it of itself reduce the criminality or mitigate the appropriate penalty. 15 In respect of the first ground to the application for leave to appeal against sentence, it is clear that, since he was sentenced, the applicant has overcome his alcoholism, at least to the extent that he abstains from ingesting it and, as the sentence judge observed (p.27), abstinence from alcohol in his case is relevant to his prospects for rehabilitation. Reference is made in the Remarks on Sentence to the opinion of Dr. Roberts to the effect that the probability of the applicant re-offending has been minimised by his abstinence from alcohol and by him undergoing appropriate treatment for alcohol ingestion (p.25). 16 In a further reference to the significance of the post-sentence history at p.27 of the Remarks on Sentence, the sentencing judge observed:- "The only other relevance of the offender's intoxication during the commission of these offences is that it may be that the likelihood of him re-offending is diminished while he abstains from alcohol." 17 At a later point, he stated:- "I take into account that he has, so far as his alcoholism, turned his life around …" (p.28) 18 And further:- "… I accept that he has good prospects of rehabilitation. It is difficult to quantify the likelihood of his re-offending, one would need to be prescient to do so, but while ever he remains alcohol free, it may be that he is unlikely to re-offend …" (p.30) 19 It is very clear from the Remarks on Sentence that the sentencing judge had repeated and specific regard to the applicant's good prospects of rehabilitation arising largely from the fact that he had, to the date of sentence, been rehabilitated from his alcoholism and that that was directly relevant to the question of the unlikelihood of him re-offending. 20 The submission has been made on behalf of the applicant (paragraph 3.1.6) that whilst the sentencing judge noted the efforts made by the applicant towards rehabilitation he did not consider it to be a mitigating factor when formulating the sentencing. 21 In support, senior counsel for the applicant, Mr. A.J. Bellanto, QC., has submitted that whilst delay itself is not a mitigating factor on sentence in sexual assault cases, any rehabilitation undertaken during the period should be considered and afforded weight on sentence. Reference was made to the decision of the Queensland Court of Appeal in Regina v. Law; ex parte A-G (1995) 84 A. Crim. R. 142 and to the decision of the Supreme Court of the Australian Capital Territory in Regina v. SP [2004] ACTCA 16. 22 This submission may be accepted as far as it goes. The real question is whether or not the sentencing judge did in fact take into account the rehabilitation that has occurred since the applicant was charged and, if so, whether he has correctly applied that factor in accordance with sentencing principles. 23 In Law; ex parte A-G (ante), the Crown appealed against the inadequacy of sentence. The respondent in that case had pleaded guilty to one count of attempted sodomy, 11 counts of sodomy and 10 counts of indecent dealing with a boy under 14 years. Some of the offences had occurred some 30 years before he was charged. He was aged 68 when sentenced and was aged, at the time of the offences, between 35 and 41 years. 24 The court (Pincus, Davies, JJA. and Demack, J.) accepted that the combined effect of aging and the absence of recorded offences since 1983 had made it unlikely that the respondent would re-offend. However, the decision in this case does not advance the submissions that have been made in the present case. Whilst the Court in Law (supra) considered that the combined factor of aging and the absence of recorded offences, together with the plea of guilty and co-operation should produce the result that the sentences for sodomy be reduced to six years (which was the term in fact imposed by the court below), it observed that the mitigating factors were fully taken into account by the imposition of the head sentences, "… and cannot be used to justify the fixing of an early date on which parole may be considered". The court set aside the recommendation for a release on parole after the respondent had served nine months. 25 Having closely read the Remarks on Sentence in these proceedings, it is clear that the sentencing judge not only made a number of references to the applicant's abstinence from ingesting alcohol and that he had good prospects of rehabilitation, due largely to his abstinence, he in fact did take those matters into account in determining and structuring the sentences imposed. The question of the applicant's prospects for rehabilitation was a matter which the sentencing judge expressly took into account, as indeed was the fact that he had in consequence "turned his life around" (p.28). 26 The sentencing judge appropriately balanced the subjective factors with those facts and the aggravating circumstances which characterised the offences as "a predatory type course of criminal conduct involving the most vulnerable child over whom the offender was in a position of trust" (p.28). 27 He expressly identified amongst the mitigating factors which he was taking into account the "good prospects of rehabilitation and the fact that there was an unlikelihood of re-offending" (p.30). He proceeded to then impose what was "a significant sentence of imprisonment" (p.31) having regard to the criminality displayed during the course of the criminal acts which he describes in some detail. 28 Consistent with the approach taken in Law; exparte A-G (ante), delay, the absence of recorded offences since 2001, the rehabilitation prospects and the unlikelihood of re-offending and other subjective factors were properly taken into account in producing an effective head sentence of seven years, together with the fact that the applicant committed seven offences of aggravated indecent assault against the complainant, each of which attracted a maximum penalty of imprisonment for seven years. 29 As to the second ground in support of the application, the applicant was accorded a discount in the order of 20% in recognition of his plea of guilty and other factors including prior good character, the likelihood that his sentence would be served in some form of protective custody, his age and remorse were all taken into account in producing the above sentencing result. 30 In the recent decision of the Supreme Court of the Australian Capital Territory in SP (supra), Gyles, J., one of the majority, referred to the appeal in that case as raising an issue of increasing importance in the criminal justice system "… the effect upon sentencing of delay in the reporting and so prosecuting of sexual abuse of young persons by persons in authority". The respondent pleaded guilty to six counts of sexual intercourse with a person under the age of 16 years, Gyles, J. considered that it was most unlikely that the effective head sentence would have been less than six years in order to reflect the criminality involved. In so saying, reference was made to relevant sentencing principles, including those related to subjective matters. It was there stated:- "It is well recognised that previous good character has a limited role to play in cases of this kind." ( Ryan v. The Queen (2001) 206 CLR 267 31 There is no attack, nor could there be, on the sentencing judge's description of the offences in this matter as being "within the worst category of the range of possible offences for aggravated indecent assaults" (p.23). That being so, and having regard to the objective seriousness of each of the offences, an effective total sentence of seven years imprisonment with a non-parole period of three years would hardly be regarded as excessive. There can be no question but that the nature and circumstances of the offence and the course of conduct involved required a significant term of imprisonment to be imposed and actually served for the purposes of punishment, general deterrence and denunciation. 32 Senior counsel for the applicant took the court to a number of authorities involving appeals against severity of sentence in sexual assault cases. The circumstances of each varied greatly. In at least two of them there were two or three complainants subject to sexual abuse involving aggravated acts of indecency and in one case involving a child under 10 years (Regina v. CDH [2002] NSWCCA 103. The other decisions referred to in the course of the hearing of the appeal were Regina v. AJC [2001] NSWCCA 388; Regina v. ICC [2002] NSWCCA 119; Regina v. MA [2001] NSWCCA 30; Regina v. SP (supra); Regina v. VJV [2004] NSWCCA 415. 33 These decisions were relied upon to support the argument that such cases could be regarded as more extreme or worst cases to this case. Whilst there is a natural inclination in some circumstances to refer to judgments in similar categories of case, on close examination of the facts of each of the decisions referred to in paragraph 30, it becomes readily apparent that many of the aggravating factors in the present case were not present or not present in the same degree. Similarly, the converse is true, namely, that specific or discrete factual matters in those cases are absent in the present case. 34 The fundamental finding as to criminality of the offences in the present matter was that already referred to, namely the finding that the criminality of the offences committed by the applicant was within the worst category of the range of possible offences for aggravated indecent assaults. That finding is not and cannot be challenged. 35 The applicant's offences accordingly, being in the worst category of the range of possible offences for such assaults renders the attempted comparison with those other cases referred to in paragraph 30 of little use in determining its appropriate position within the range. Accordingly the exercise attempted by senior counsel in comparing this case with those others in order to demonstrate error is not an exercise of any material utility and does not at all, in my opinion, demonstrate error in the total effective sentence of seven years with a total non-parole period of four years. 36 Although not subject to challenge in the present application, the Court drew attention to the apparent miscalculation by the sentencing judge in respect of counts five and six. The learned judge determined that the discount to be allowed for the applicant's pleas of guilty was in the order of 20%. As the maximum term of imprisonment in respect of counts five and six was seven years, with a discount of 20%, the appropriate term of imprisonment should have been calculated at five years, six months in each case rather than the terms of six years imprisonment imposed respectively for counts five and six. 37 In these circumstances, the question arises as to whether or not the error in calculation on those two counts out of the total of eight counts warrants the Court's intervention in terms of the total effective sentence of seven years as determined by the sentencing judge. The sentences determined in respect of the eight counts having been accumulated to arrive at the total effective sentence of seven years, there is no warrant, in my opinion, for the discrete errors in calculation in respect of counts five and six to call for the total effective sentence to be revised or adjusted. 38 Accordingly, for the reasons that I have expressed, the applicant's sentence is not, in my opinion, manifestly excessive and outside the appropriate range for such extreme offences as established and described in the Remarks on Sentence. 39 I accordingly am of the opinion that the application should be dismissed. **********

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