Regina v CDH [2002] NSWCCA 103 | Case summary

Wednesday, 3 April 2002 REGINA v CDH Judgment 1 LEVINE J: I agree. 2 CARRUTHERS AJ: CDH seeks an extension of time and leave to appeal against sentences imposed upon him by her Honour Judge English in the District Court at Gosford on 15 February 2001. 3 The applicant pleaded guilty in the Local Court at Wyong on 24 October 2000 to two charges of aggravated indecent assault pursuant to s 61M(1) of the Crimes Act 1900 (the Act) (counts 1 and 4), which offence carries a maximum penalty of imprisonment for seven years; one charge of attempted sexual intercourse with a child under ten years pursuant to s 66B of the Act (count 2), which offence carries a maximum penalty of imprisonment for twenty years; and one charge of sexual intercourse with a child under ten years pursuant to s 66A of the Act (count 3), which offence carries a maximum penalty of imprisonment for twenty years. 4 Her Honour was also asked to take into account a further offence under s 61M(1) contained in a Form 1, such offence occurring between 1 September 1998 and 31 October 1998. 5 In relation to the charge under s 66A (and taking into account the matter in the Form 1) her Honour sentenced the applicant to imprisonment for six years to date from 9 February 2001 and to expire on 8 February 2007. Her Honour fixed a non-parole period of four years and six months to commence on 9 February 2001 and to expire on 8 August 2005. 6 In relation to the other charges the applicant was sentenced to concurrent fixed terms of three, three and two years respectively. The sentences were each ordered to commence on 9 February 2001 upon which date the applicant was taken into custody. 7 It is not necessary to relate the details of the behaviour which the applicant, the natural father of the child engaged in over the period from March 1998 to around July 1999. The child was the applicant's daughter who was aged four to five years at the time of the offences. Most briefly stated the acts admitted by the applicant included licking the victim's vagina, touching it, placing his penis between the legs of the victim and rubbing it, masturbating in her presence and, on one occasion, pushing the victim's face towards his penis. In relation to that last act, which was the attempt charge, the activity stopped when the victim said "No". 8 In an ERISP the applicant voluntarily confessed that he did the various acts about ten to fifteen times over the period in question. According to her Honour: "These matters were reported by the prisoner following disclosure by the victim to her mother of the prisoner's behaviour. It was only after his wife, to use her words, screamed, asked, badgered and begged the prisoner to confess to the authorities that he attended and made full disclosure." 9 On 1 July 1999 the Joint Investigation Team interviewed the child but she said nothing to suggest the applicant had done anything sexual towards her. This, it was said, was in spite of a number of leading and suggestive questions. 10 On 25 March 2000 the applicant made certain admissions to DOCS and on 28 June 2000 he presented himself to police and, as I said, an ERISP was conducted during the course of which the applicant made the admissions upon which the charges were based. 11 Subjective and mitigating factors raised by the applicant are that although he has no relevant criminal record in this State he admitted an offence of armed robbery in New Zealand when he was in his late teens for which he received a sentence of imprisonment. 12 The applicant contends that the most striking subjective and mitigating features of the case were, first, the strong evidence that he had been the victim of physical, sexual and psychological abuse as a child at the hands of his father and, secondly, the extent of the applicant's disclosures to police and the circumstances in which those disclosures were made. 13 The applicant contends that the learned sentencing judge referred in passing to the evidence of the applicant's childhood trauma but made no comment to suggest that she had taken it into account in assessing the subjective gravity of his offending in a similar way against his daughter. Furthermore, it is contended her Honour did not appear to take into account in his assertion of remorse, contrition and his acknowledgement that he had put his wife and children through pain and suffering. 14 In that regard her Honour said: "He describes his behaviour as foolish and selfish. He acknowledges that he has put his wife and children through pain and suffering. I do not, however, accept that this acknowledgement is a genuine expression of remorse or contrition. Instead I find the prisoner is more concerned about the impact a custodial sentence will have upon his life. He is distraught that he has now been separated from the victim. I find that it was as a result of his wife's insistence that he sought assistance from the Cedar Cottage and reported the matters to the Department of Community Services, not steps he took upon himself." 15 Subsequently her Honour said: "I do not accept his expressions of remorse and contrition as genuine." 16 It is of course a matter of weight depending upon the individual case, and subject to the wide discretion in the sentencing judge, as to the extent upon which the sexual assaults in his own childhood should operate as a mitigating factor in regard to sexual assaults upon his own child: see R v AGR (CCA 24 July 1998, unreported, at p 13). See also R v Balfour (CCA 31 July 1996, unreported) and R v AB (CCA, 7 July 1997, unreported). 17 It is clear in the context of the case as a whole that from a discretionary point of view, her Honour was not minded to mitigate the punishment which was appropriate for the subject offences by reference to the contentions (albeit supported to some extent by independent evidence) that he himself had been the victim as a child of sexual abuse. As a discrete aspect of the subjective circumstances relied upon by the applicant, this appears to me (with respect) to be a conclusion which her Honour was entitled to reach. 18 It was then submitted on behalf of the applicant that the case was remarkable in that without the disclosures made by the applicant there would have been no case to answer or at most a tenuous case based on the hearsay assertions of the child's mother, and further that any such case would have been undermined to a very great degree by the child's interview by the authorities on 1 July 1999. In that interview, as I have said, the child made no allegations against the applicant. 19 Thus, it was argued, that the applicant was entitled to "a significant added element of leniency": see R v Ellis (1986) 6 NSWLR 603 at 604, which authority was affirmed by the High Court in Ryan v The Queen [2001] HCA 21. 20 In Ryan Kirby J said: "It follows that, in the words of McHugh J in AB v The Queen , the appellant was entitled to ' considerable leniency because of his confession'. The sentencing judge did not express matters in those terms. Instead, the appellant's confession was simply considered in the context of the 'discount' to which a prisoner is ordinarily entitled for a guilty plea. There was no reference to R v Ellis . There was no indication that ' considerable ' or ' significant added ' leniency was allowed. The Court of Criminal Appeal did not suggest that there had been a reference to the particular consideration of ' leniency because of his confession ". Neither in the reasoning of the sentencing judge, nor in the resulting sentence, do I consider that the principle in R v Ellis was applied. It follows that, on the face of things, a specific error of sentencing principle has occurred which the appellant identified and the Court of Criminal Appeal failed to correct. To say this is not to fall into a mistake of ascribing to the words of Street CJ in R v Ellis , or of McHugh J in AB v The Queen , a rigid or inflexible application. However, words represent images that conjure up ideas. The words ' significant ' and ' considerable ' are adjectives of degree. Prima facie a large deduction in sentence is appropriate in such a case. Otherwise, the judges concerned, when they expressed the applicable rule, could have used lesser adjectives, such as ' modest ' or ' minimal ' or perhaps the ever enigmatic ' appropriate '. For a long time now it has been the law - correctly in my view - that a ' significant ' discount should be given in a case such as the present. That is the law that should have been applied in the sentencing of the appellant." 21 It was pointed out by the applicant that her Honour did not indicate that she was extending "a significant added element of leniency" and the sentences imposed, it was argued, do not suggest relevant leniency was shown. 22 Her Honour noted in the remarks on sentence the Crown's proper concession that, in the circumstances of his disclosures, admissions and pleas he is entitled to a significant discount and then said that she allowed 30% discount for the pleas. It would appear that her Honour may have been using the word "pleas" in a generic sense to cover the various matters referred to earlier in that sentence, but this is not clear. 23 It was submitted that whatever role the applicant's wife may have played in the matter, it was the applicant who took the steps which led to his being charged and exposed to punishment and which had alleviated the necessity for the child to be re-interviewed or, more significantly, called as a witness. It was submitted that there are strong policy considerations, particularly in matters of this nature, to encourage offenders to make disclosure and seek help by way of counselling. Further where such disclosures are made, offenders should be seen to receive the type of mercy contemplated in Ellis and Ryan as a means of encouraging others to disclose their wrongdoing and diminishing the suffering of those against whom the offences were committed. 24 Thus it is submitted that her Honour fell into error in failing to extend appropriate leniency with regard to the applicant's confession. 25 In response the Crown relied upon the fact that the disclosures by the applicant were not disclosures of unknown or hitherto undisclosed guilt for the offences. The disclosures, the Crown contended, were not entirely voluntary in the sense that they came after disclosures to the mother by the child and the mother's insistence that the applicant do something about it. Thus the case was to be distinguished from the factual situation in Ellis. In these circumstances it was argued that the overall allowance of 30% discount applied by her Honour was adequate. 26 Although the matter is not without difficulty, I have come to the conclusion that her Honour did not make sufficient allowance in the assessment of the appropriate head sentences for what is commonly referred to as the Ellis discount. It should, in my respectful view, have been made clear to the applicant that he was receiving a significant added element of leniency by reason of these disclosures. There can be no doubt that there were in this case very full and frank admissions by the applicant which were sufficient to support a prosecution which otherwise would, in all probability, have not been instituted. 27 Thus, in my view, a case for the intervention of this Court has been established and it is necessary for the Court to re-sentence. 28 To give full weight to the Ellis discount, I would propose that the head sentence in relation to the conviction under s 66A be reduced to five years, and the fixed terms in relation to counts 1 and 4 be each reduced proportionately to two years and six months. In this regard I also take into account the favourable supplementary evidence regarding the applicant's conduct and attempts at rehabilitation whilst in custody. 29 The next ground of appeal relates to special circumstances. Her Honour declined to find special circumstances and, accordingly, to make an adjustment to the length of the non-parole period from that applicable to the statutory ratio. 30 In this regard her Honour said: "When fixing the non-parole period on the first count I have had regard to the interests of the prisoner and the community in providing for an adequate period of post release supervision. I am not convinced that there is reason to suppose that the prisoner may have reached a point in his life where he has realised the error of his ways or demonstrated any clear intention of rehabilitating himself. Whilst a significant period of post release supervision on parole is justified, that does not justify reducing the non-parole period to one that fails to appropriately reflect the criminality for which this prisoner has been sentenced." 31 The applicant contends that this passage suggests that her Honour applied the wrong test to the question of special circumstances in the light of the judgment of Spigelman CJ in R v Simpson [2001] NSWCCA 534 at par 69, where the Chief Justice pointed out that "The case law does not justify a restrictive approach to the scope of considerations relevant to the determination by a court of what constitutes special circumstances in a particular case". 32 In any event it is submitted on behalf of the applicant that the circumstances of the case were such that a finding of special circumstances was the only reasonable and just finding upon the evidence: see House v The King (1936) 35 CLR 499. It is submitted that her Honour also failed to take into account (on the question of special circumstances) the fact that the applicant was serving a sentence on protection: see eg R v McLear NSWCCA, 1 September 1992 and the more recent case of R v Wahabzadah [2001] NSWCCA, unreported, 253 at par 19-20. 33 Her Honour did in fact make a reference to the fact that the applicant will spend part or all of his sentence on protection. She said, "I have taken into account the fact that, because of the very nature of these offences, the prisoner will spend part or all of his sentence on protection", but made no provision for that fact when fixing the non-parole period. 34 In response the Crown contends that a finding of special circumstances does not require a variation of the statutory proportion: see R v Davis [2001] NSWCCA 70. Further that the finding of special circumstances is a discretionary matter for the sentencing judge: see R v Mangoline, unreported, CCA 17 August 1998. Reliance was also placed on R v Leon, unreported, CCA 30 November 1994 to support the contention that her Honour was not obliged to find that the applicant's circumstances in serving his sentence in protective custody amounted to special circumstances. 35 I am of the view that a case has been made out for some reduction in the non-parole period beyond the statutory ratio, in the re-sentencing process. 36 However, in all the circumstances I would allow no greater reduction than six months. This does take into account the fact that the sentence will be entirely served in protection, the attempts at rehabilitation by the applicant whilst in custody, and his need for a significant period of parole. 37 Accordingly, I would propose that the applicant be granted leave to appeal, albeit the application was made out of time, and that the appeal be upheld. 38 I would propose that in lieu of the sentences imposed by her Honour, the following sentences should be passed. 39 With regard to count 3, a head sentence of five years to date from 9 February 2001 and to expire on 8 February 2006, with a non-parole period of three years and three months to expire on 8 May 2004. This sentence takes account of the matter on the Form 1. 40 With regard to count 2, imprisonment for two years to date from 9 February 2001. 41 With regard to each of counts 1 and 4, imprisonment for two years and six months to date from 9 February 2001 and to expire on 8 August 2003. 42 A non-parole order is not fixed in relation to counts 1, 2 and 4 because of the non-parole period fixed in relation to count 3. 43 It can be seen that I would confirm her Honour's sentence with regard to count 2. **********

Regina v CDH

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (5)

Cited By (5)