REGINA v. ELLMORE [2002] NSWCCA 242

WEDNESDAY 19 JUNE 2002 REGINA v. ROBERT ELLMORE Judgment 1 GREG JAMES, J: This is an application for leave to appeal against the sentences imposed on the applicant in the District Court of New South Wales in consequence of the applicant's committal for sentence under the provisions of s.51A of the Justices Act 1902 and in consequence of the applicant's pleas of guilty on arraignment on additional charges on an indictment. 2 The applicant had pleaded guilty on two different days in the Central Local Court in respect of the matters on which he was committed for sentence to the District Court. He had, in the District Court, entered his plea to the charges on the indictment on 6 December 2001. He was sentenced on 18 January 2002. The trial judge had dated the commencement of the sentences he imposed only from the dates he expressed on the date of their imposition. The applicant had, however, been in custody since 24 April 2001, having been taken into custody for these offences. I will return to the dates on which the sentences were to take effect later in these remarks. 3 The offences for which the applicant came forward for sentence in counts one to three were offences under s.76A of the Crimes Act 1900 of commit an act of indecency on a female under the age of 16 years. The maximum penalty for those offences as prescribed by that section, which has since been repealed, was two years penal servitude. The offences were said to have been committed in or about January 1981. 4 The offences charged in counts four and five of the indictment were offences of aggravated indecent assault said to have been committed between 30 March 2001 and 2 April 2001. Those matters are offences under s.61M(2) of the Crimes Act 1900 for which maximum penalties are prescribed of 10 years imprisonment. 5 On the s.51A document an offence was charged of assault and commit an act of indecency on a person under the age of 14 years, the date of the offence being between 1 September 1984 and 30 September 1994. This was an offence under s.61E(1) of the Crimes Act 1900 which has also been repealed but which provided for a maximum penalty of six years penal servitude. 6 The trial judge imposed the following sentences: on counts one to three, imprisonment on each count for a fixed period of 15 months, that imprisonment to commence on 18 January 2002, the date of imposition of the sentences, and to expire on 17 April 2003. 7 On counts to four to five, on each count his Honour imposed a sentence of imprisonment of eight years to commence on 18 January 2005 and to expire on 17 January 2013. On each count his Honour imposed a non-parole period of five years. Although that non-parole period is less than the statutory proportion referred to in s.44(2) of the Crimes (Sentencing Procedure) Act 1999, his Honour did find special circumstances, when regard is had only to the sentence on which it was imposed, since that sentence, as will appear, was cumulative, the total effective non-parole period was only fractionally less than the statutory proportion, having regard to the effective total sentence. I will return to this matter also later. 8 On the s.51A offence his Honour imposed a sentence of imprisonment for a fixed term of three years to commence on 18 January 2002 and to expire on 17 January 2005. That term of imprisonment is therefore to be served concurrently with the imprisonment imposed on counts one to three and the imprisonment imposed on counts four to five is to be entirely cumulative on the sentence passed in relation to the offence contained in the s.51A document. 9 The applicant had, at the time of coming forward for sentence, a substantial record for sexual offences against young females. He had received, in 1999, in the District Court of New South Wales, sentences for indecent assault on young females, which sentences contained an additional term of two years providing for his release subject to supervision. The applicant was thus on parole at the time of the commission of the last two offences to which his Honour referred in his remarks on sentence when he referred to the offences under s.61M, they being the offences embraced in counts four and five. 10 It is not necessary to repeat in detail the specific facts of each of the offences in this judgment. They are set out in his Honour's remarks on sentence. It is sufficient to say that the offences referred to in the committal document arose out of the offender's abuse of trust towards a young girl, then aged 12 at a time when the offender was the rector of an Anglican church. When the young girl had visited his home the offender picked her up and rubbed her against his lap. 11 As to the offences charged on the indictment, three of those offences related to the conduct of the offender towards a 10 year old girl on three consecutive days, again when he was a rector of an Anglican church, in circumstances where he used the pretext of religious education to approach the girl alone. Again he rubbed her on his lap and manually interfered with her. 12 The last two counts, as his Honour referred to them in the indictment, related to the offender's conduct whilst on parole in the year 2001 toward an eight year old girl, he having been a guest overnight, at the invitation of her parents, in their home. That conduct involved manual interference with the young girl. On the day following, the conduct came to light. The parents confronted the applicant and he said:- "I couldn't help myself, it is a sickness." 13 He apologised to the victim and left the house, was arrested and charged. 14 The trial judge, in passing sentence, turned to some of the subjective features that had been established in the material before him and referred to the applicant as being aged 64 as at the time of sentence, having been born on 10 October 1937. He referred to the applicant having had a family, which has apparently, to a very great extent, severed contact from him. He referred to pre-sentence reports, which detailed the applicant's theological studies and work in the church. He referred to the applicant's offences having resulted in his exclusion from the priesthood. 15 The trial judge summarised the effect of the applicant's previous behaviour and offences by referring to portion of a report provided by Dr. Lennings concerning the applicant being a long term paedophile. That report referred to a 40 year history of persistent sexual deviation with strong paedophile interests in young girls. That conclusion, that the applicant had been a long term paedophile with interests in young girls, was conclusively established by all the material. His Honour reached the view that the risk of re-offending in the applicant's case without appropriate intensive therapeutic intervention was moderately high. However, his Honour also referred to Dr Lennings' report and a psychologist's report emphasising the availability of a long term treatment programme involving a high level of intensive community supervision with a view to successful management of the applicant's problem. 16 The trial judge adverted to the entry of pleas of guilty from the outset, referred to what he accepted was genuine remorse and contrition to some extent and referred specifically to the applicant being himself concerned at his own behaviour and being genuine in his desire to do something about bringing that behaviour under control. 17 On the hearing of this appeal there was tendered, on the basis that reference to it would be appropriate if the court should be minded to re-sentence, a report from Dr. Rob McMurdo, psychiatrist, of 10 April 2002. That report, to which regard might be had in the event of re-sentence, details the extent to which the applicant had been willing to take steps to bring his behaviour under control, even being prepared to resort to castration or chemical castration. It will be a matter to which regard may need to be had on re-sentence that that report contains material the effect of which would seem to overcome the reserve his Honour expressed as to the prospects of the applicant. 18 His Honour was satisfied that there was help and treatment available to the applicant, both in and outside the prison system, and that treatment, if successful, would probably enable him to bring his deviant sexual behaviour under control. His Honour was satisfied of the applicant's genuine willingness to participate in that treatment. 19 His Honour turned then to the gravity of the crimes. He regarded these crimes as extremely serious. That is a view that this court must share. The conduct tended, as his Honour pointed out, to undermine that trust which parents and young children are entitled to have in the institutions of the church. Although his Honour referred to a criminal invasion of the bodies of the three victims, those words should be understood as referring to the manual interference and the rubbing of the victims' bodies upon his body, to which I have already referred. There is no reason to apprehend that his Honour failed to have proper regard to the nature and gravity of the conduct. He expressed the view that the maximum sentence provided by law underestimated the community's abhorrence of this type of conduct, but properly regarded himself as bound to deal with the matters of sentence in accordance with law. 20 He concluded, however, that there should be severe sentences, notwithstanding the applicant's remorse for the reasons set out in a passage in his remarks which I quote:- "You have been defrocked by your former church, but it seems to me that you have only yourself to blame for the position that you now find yourself in. Even though Dr .Lennings, in his report, recognises that the history given to him by you of inter-generated child sexual abuse at the hands of your grandmother and your uncle could have sensitised you to your deviant sexual impulses and so provided you with an opportunity to develop the necessary loss of inhibition against sexually molesting children that is ingrained in everyone in the community. Even if Dr. Lennings' views in this regard are correct, then that fact may go some way to explain why you gave in to or possessed your deviant desires, but it does not go any way towards excusing it. It certainly does not excuse your criminal conduct towards the three young girls in question at any time. In abusing them as you did, as I have previously said, you abused the confidence that they placed in you, you abused the trust they placed in you and you abused the trust their parents placed on you. On two of those occasions the situations occurred while you were a Minister of the Anglican Church. On one of them you abused the trust placed in you by parents who had befriended you, despite your previous conduct of which they were well aware." 21 His Honour referred also to a matter which has been the subject of a particular submission in this court. That is that the applicant's sexual dealings occurred in a context in which he himself had been the victim of sexual abuse. It was submitted to us that regard should have been had to this matter as his Honour does not appear to have so regarded it as such as to mitigate, to some extent, the sentence as should have been imposed. 22 Further, it was submitted that his Honour had failed to have regard at all to the applicant's otherwise good character, his works of assistance and value to the community as expressed, which ought also, so it is submitted, to have been taken into account, at least to some extent, having regard to the decision of the High Court of Australia in Ryan v. The Queen (2001) 75 ALJR 815. Both of those matters are matters to which regard should be had in the event that the court is to re-sentence. However, they are in the context, overall, of the sentences that should properly be imposed for offences of this gravity; matters, whilst of significance, that would not of themselves have a substantial bearing on the result. 23 His Honour referred to the applicant as being entitled not only to a utilitarian discount in respect of the early pleas of guilty, but also to an additional discount for the applicant's pleas saving the three victims from reliving the sorry episodes in their lives that gave rise to the offences. His Honour adverted, in addition, to the custodial portion of the applicant's sentences having to be served in protected custody and to that being a more onerous burden. In this court it was submitted that the effect of serving the custodial portions in such a way is to impose a sentence one and a half times or twice as onerous as the ordinary incidence of sentence on an offender. 24 His Honour had regard to the last two offences, that is, the offences under s.61M(2) that were committed whilst the offender was on parole and concluded that he did not think he should backdate the sentence to the date of arrest because the applicant was on parole at the time of the commission of the offences, presumably because his Honour thought that some action in relation to that parole might have a bearing on the incidence of these sentences. His Honour had regard to the principle of totality but concluded that it was necessary to pass cumulative sentences. His Honour did refer to the question of backdate in the context of the Parole Board dealing with the offender for breach and the ordinary expectation that there would be a revocation of parole, something which had not, at the time of the sentencing, occurred. He expressed the view that were there to be a backdate, there would be concurrence between the sentences he was passing and those for which the applicant was on parole and he appears to have concluded that should not occur. 25 When his Honour came to fix the non-parole period he found special circumstances, in particular in the light of the material from the doctor and psychologist about the need for the applicant to undergo a prolonged treatment regime. He expressed the desirability for that regime to commence as soon as possible and particularly in custody. In regard to that finding of special circumstances his Honour had no express regard to the age of the offender at the time of expected release, ie., 72; to the cumulation of the various sentences producing a non-parole period which, in effect, was of eight years duration; or to the fact of the regime for rehabilitation, to which he referred, having to be administered, at least so far as the period in which the offender was in custody, in the context of protection, the more onerous mode of serving a sentence. 26 But his Honour did say that he had discounted the sentences he might otherwise have imposed as a result of the pleas of guilty and the promise to undergo rehabilitation and made reference to the necessity for supervision on parole and the participation in a community based programme. 27 The product, therefore, in overall terms of the sentences imposed by his Honour was a sentence which, in its total effect, extended for 11 years with a non-parole period of eight years from the time from which the sentences were passed and which did not take into account the full time for which the offender would be in custody, which approximated some nine months, that being because of his Honour declining to backdate the sentence. 28 I turn, firstly, to the question of the commencement date of the sentence. The Crime (Sentencing Procedure) Act 1999 provides in s.24 that the court must, in sentencing an offender, take into account any time for which the offender has been in custody in relation to the offence. Normally the court will backdate a sentence so that it commences upon the date the offender went into custody for the offence (Regina v. McHugh [1985] 1 NSWLR 588). It has been said that, other than in exceptional circumstances, the court should commence the sentence from the date the accused entered into continuous custody for the offence. See Regina v. English [2000] NSW CCA 245, where emphasis was placed by this court on the ordinary rule. 29 In this case what the trial judge appears to have done is to decline to take into account the period for which the applicant was in custody for these offences when the matter came before him, on the expectation that that custody should be made referable to the earlier offences for which the applicant was then on parole, by the mechanism of the parole board revoking the parole. It has been submitted that that is an error of principle. Against that submission it was urged by the Crown that his Honour was only doing that in the context of his recognising the inevitability of such a course being taken by the Parole Board. I do not regard that as a sufficient answer. In particular what has been done has operated effectively to affect the discretion of the Parole Board. I do not see that this case differs from any other case in which offences have been committed while on parole. It is for the court to pass sentence in accordance with the principles and practices relevant to that exercise rather than seeking to advert to what courses might be taken, applying different considerations, by the Parole Board. 30 In my view the trial judge's discretion to fix the commencement date of the sentence has miscarried and in my view the appropriate commencement date for these sentences as accumulated should be 24 April 2001 in accordance with the ordinary rule. 31 It was further argued that the sentences imposed were affected by error in that the trial judge had failed to take into account that "otherwise good character" to which I have referred, had failed to give adequate recognition in the final product of the sentence to matters which should have discounted the sentences imposed sufficiently so that the eight year sentence differed sufficiently from the maximum of 10 years for the offences under s.61M and that the end product of the sentences passed, particularly for those offences, that is to say, eight years as against a maximum 10 years, showed that those matters his Honour had found by way of leniency had not been translated into the calculation of the sentences actually fixed. I agree with that submission. It is patent that his Honour was minded to allow the full extent of discount provided by the decisions of this court for the early pleas. This is particularly appropriate in a case of this sort to encourage pleas for offences of this kind and, as to some of them, of this antiquity, thus discouraging the necessity for the victims to have to come forward. 32 There were a number of matters to which his Honour adverted over and above the utilitarian values of the pleas which should have resulted in a greater discount, but it is not necessary to detail them with particularly. It is sufficient to say that in my view, having regard to the percentages referred to in decisions such as Regina v. Thomson & Houlton (2000) 49 NSWLR 383 that there should have been an overall greater difference between a sentence of eight years and a maximum of 10 years for the s.61M offences. 33 Further his Honour found special circumstances. As I have said, in total effective terms, the non-parole period differed, but little from the statutory proportion. In my view it was necessary for the non-parole period, in these circumstances, to differ by some such significant amount as reflects the special circumstances found. I would conclude that a non-parole period of the order of two-thirds would be appropriate. 34 Having regard to the material tendered before the court today on re-sentence, that is to say the report of Dr. McMurdo, and having regard to all of the circumstances found by his Honour as I have referred to, which in my view did not translate into the final product of sentence, I conclude that the following orders should be made: 35 Leave to appeal against the sentences should be granted. The appeal should be allowed in part. The appeals should be dismissed against the sentences of the fixed period of 15 months on each of counts one, two and three of the indictment but vary the date of commencement of each such sentence to 24 April 2001 to expire on 23 July 2002. Dismiss the appeal against the sentence imposing a fixed period of imprisonment of three years on the s.51A committal sentence for the offence of assault and act of indecency in September 1984 but vary the date of commencement of such sentence to 24 April 2001 to expire on 23 April 2004. Allow the appeal against the sentences on counts four and five of the indictment. Quash those sentences and in lieu of the sentences imposed, sentence the applicant on each count to imprisonment for seven years commencing on 24 April 2004. Impose a non-parole period in respect of those sentences of three years, eight months commencing that day, that is 24 April 2004 and expiring on 23 December 2007, on which date the applicant is eligible for release on parole. 36 SMART, AJ: I agree. 37 GREG JAMES, J: The sentences will therefore be as I have proposed and the orders on appeal as I have proposed. **********

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