REGINA v. GREENAWAY [2000] NSWCCA 368

1 PRIESTLEY, JA: I will ask Greg James, J. to give the first judgment. 2 GREG JAMES, J: Initially, these were proceedings for leave to appeal in respect of sentences imposed on some six counts of criminal offences, by his Honour Judge Coleman in the District Court sitting at Newcastle. 3 The applicant had pleaded guilty on the six counts. He was represented on those pleas. His Honour convicted the applicant on each of the six counts. The submissions by the legal practitioner appearing on his behalf did not descend to great detail and afforded most limited assistance to his Honour. 4 When the matter came before us, in consequence of matters drawn to our attention by the Crown in their written submissions, those matters having come to the cognisance of those now acting for the applicant, an application for an extension of time to appeal against conviction and a notice of appeal against conviction was by the leave of the court, filed. 5 The offences of which the applicant was convicted and to which he pleaded guilty were in the case of four of the offences, offences under s.81 of the Crimes Act 1900, of indecent assault upon a male. Those offences were each punishable by a maximum penalty of five years penal servitude. The other two offences comprised the offence of buggery under s.79 of the Crimes Act 1900, punishable by 14 years penal servitude, and an offence of committing an act of gross indecency by a male upon a male, an offence under s.78Q(1) of the Crimes Act 1900, an offence punishable by a maximum penalty of two years imprisonment. 6 It is not necessary to turn to the details of the dates specified in the counts to which the applicant had initially pleaded in the Local Court and which had come to the District Court by reason of the provisions of s.51A of the Justices Act 1902, except in respect of count four. It is in respect of that count that the applicant has sought the extension of time to appeal and has sought to appeal against conviction. That count was expressed as charging an indecent assault which had occurred between 1 November 1983 and 31 December 1984. 7 The Crimes Act 1900 was amended by the Crimes Amendment Act 1984 which amendments took effect as and from 8 June 1984 repealing s.81, thus abolishing the crime created by that provision. Section 78Q of the Crimes Act 1900 was inserted by the amending Act and the offence thereby created existed from that date. 8 The history of these provisions and the question of the essentiality of the dates in such circumstances has been extensively reviewed in this court in Queen v. Stringer [2000] NSWCCA 213, particularly in the judgment of Adams J. 9 It has become apparent, when one has regard to the Crown's submissions that it is not possible to fix the occasion upon which the indecent assault alleged is said to have occurred with any greater accuracy that at sometime during the period particularised. It follows that it is not possible to say whether an offence was committed under the repealed provision or under the new provision. 10 It is common ground that the old offence was abolished and that the new provision creates a new offence. In those circumstances, it has been submitted that the extension should be granted and the appeal allowed. In that regard our attention has been drawn by the Crown to the decision of this court in Page v. The Queen (CCA, unreported, 25 November 1991 at 8-9), and the decision to similar effect of the Court of Criminal Appeal of Western Australia, in Regina V. Kailis [1999] WASCA 29 in particular at paragraphs 8-67 in the judgment of the Chief Justice, with whom Ipp and Anderson, JJ. agreed. 11 The specification of dates fixing the time of the commission of an offence in an indictment is usually a mere matter of particulars, however, in appropriate circumstances, that mere matter of particulars may achieve importance such as to show that the offence might not be maintainable in law or to reveal a latent duplicity. 12 It matters not in the present case which mode of analysis one adopts; suffice it to say that the Crown concedes that the conviction for either of the two offences, reference to which in the charge sheet was made, engagingly, by setting out the section number of the original section, s.81 separated by an oblique from the reference to the new section, s.78Q, cannot be maintained. 13 In those circumstances, the appeal under s.6(1) should be allowed. The time for appealing should be extended. The consequence is that the conviction on the fourth count should be set side and the sentence on that count quashed, the application for leave to appeal against the sentences and that appeal be granted and this court should proceed to re-sentence. 14 The sentences imposed by his Honour on the various counts were imposed in consequence of his Honour having regard to the totality of the sentences, both to the totality of circumstances and to the overall effect of the sentences, although it was necessary for his Honour to adjust the precise expression of the sentences he imposed anew after apparently concluding the sentencing exercise. 15 Although his Honour's final sentence was attended with some degree of ambiguity, none the less, that sentence provided for an overall sentence on the six counts, in effect of a total sentence of seven years to commence 13 May, 1999, and a minimum term under the then existing legislation of five years from that date. By reason of the allowing of the appeal against conviction, the sentence his Honour passed on the fourth count by way of a fixed term of two years to be served concurrently with the sentence passed on the first charge, commencing 13 May 1999 and to expire 12 May 2001 will now have to be set aside and the applicant re-sentenced. 16 On the third charge, his Honour had imposed a sentence of penal servitude for five years cumulative upon the first sentence to consist of a minimum term of three years and an additional term of two years. The ambiguity to which I referred arises in that his Honour had passed on the first count a sentence of imprisonment of a fixed term of 15 months to commence 13 May 1999 and due to expire 12 August 2000, yet when enunciating, in the document headed "Final Result", produced to show the effect of his Honour's adjournment of the sentences to which I have referred the sentence on the third count, his Honour expressed that sentence to commence on 13 May 2001 and the minimum term to expire 12 May 2004. The additional term was to expire on 12 May 2006. 17 It becomes apparent therefore that his Honour has expressed that sentence to be cumulative upon the sentence which, by way of fixed term, expired on 12 May, 2001. That was the sentence on the fourth count, that on which I consider the Court should allow the appeal against conviction. It will therefore be necessary to adjust the sentence for the third charge in particular. 18 I should note that on the second count his Honour imposed a fixed term of 18 months to be served concurrently with that imposed on the first count, on the fifth count his Honour fixed the term of four months to be served concurrently and on the sixth charge a fixed term of six months to be served concurrently. 19 His Honour had found special circumstances and the statutory relationship had been varied by his Honour to a limited extent because of that finding. Both parties submit and I accept that there are those special circumstances here. 20 The offences in their nature were very grave indeed. At the time of the first of the offences charged the victim was between the ages of five and six and the offender was between the ages of 46 and 47. The offender had grossly abused the trust reposed in him as a relative and had sought to pervert the young boy in his care. The age disparity was a matter to which his Honour expressly adverted when referring to the gravity of the crime, and accompanying the crimes were activities by which it appeared the offender was seeking to educate the child towards the offender's particular sexual disposition. 21 When the second offence occurred the victim was about nine and the offender aged about 50. The third offence, that of buggery, was an offence which was committed in circumstances showing a complete disregard for the victim and an intent that the offender would engage in that particular form of sexual conduct with the young person, notwithstanding the pain that it caused to the victim. Again it was an offence committed, as they all were, in serious breach of trust. 22 The fourth offence involved a serious invasion of the body. The seriousness of that offence was reflected in the fixed term of two years imprisonment his Honour imposed, notwithstanding that sentence was concurrent with all but the sentence on count three. It cannot be said that offence and the subsequent sentence did not occupy, by reason of the concurrence that his Honour ordered, a substantial position in the hierarchy of offences he was considering. That sentence bore substantial weight in the overall sentence. 23 The fifth offence was when the victim was about 11 and the applicant about 52. The sixth and final offence was an offence which was committed apparently when the victim was about 12 years old and the applicant about 53. 24 It becomes apparent when considering these matters as a series that there was a continuing and extensive breach of trust over the years. His Honour found the offences had a marked and unfortunate effect on the victim in his later life and that amongst the other effects of that conduct was the possibility of it causing the breakdown in the victim's relationship with a particular young lady. 25 His Honour held that the victim had expressed contrition. He had regard to the early plea of guilty, he had regard to that plea as sparing the victim the necessity of coming to court and to the utilitarian saving to the community involved in such an early plea. 26 In that regard, the recent decision of this court in Regina v. Thomson & Houlton [2000] NSWCCA 309, assists us to consider the proper value to be attributed to a plea of guilty in those circumstances. 27 His Honour referred to the prisoner's subjective circumstances and his prior criminal record. That record contains offences of dishonesty but, more importantly, it refers to a conviction which pre dated the commission of these offences, in that on 28 August 1970, the applicant had been sentenced on each of five charges, of indecent assault on a male person with that sentence of nine months suspended on him entering into a recognisance that he be of good behaviour for 18 months with conditions that he undertake supervision and treatment. 28 In that regard the Crown has presently submitted before us that it cannot be said as a consequence that he should be treated as a person whose life so far has been blameless. 29 There was evidence before the trial judge, now before us, concerning the applicant having comparatively recently been estimably engaged in church activities. 30 The offender came forward for sentence at the age of 67, he is now 69, he would turn 70 in August next year. We have, in this regard, received his affidavit recently sworn, referring to the circumstances of his age, his present custody, which is, because of the nature of the offences and his age, in the at risk program, he having been placed on protection. 31 The relevance of age and the possible crushing effect of a sentence on a person of such age being in custody for an extensive period, has been referred to in the decisions in Regina v. Holyoak (1995) 82 A. Crim. R. 502 and Regina v. Yates (1985) VR 43. His Honour found that the sentence he was imposing was liable to be more onerous upon the applicant than on a younger person. His Honour does not, however, seem to have had regard to the matters now in evidence before us, as to the prisoner finding the sentence more onerous because of having to serve it in circumstances of strict protection. 32 The court is confronted with the necessity when sentencing for a series of offences of this kind, to have sufficient regard for the general deterrent component required in sentences for crimes of such severity and gravity. As his Honour said, the community is entitled to expect those who are minded to commit these offences will understand that when they are discovered they will be dealt with and dealt with severely. Those remarks were made particularly in the context of the offences going, because of the understandable attitude of the victim, undiscovered for so many years and only having come forward to be considered when the perpetrator is of some considerable age. 33 It is also necessary too that while having regard to the principles of totality this court should deal with the offences in accordance with the decision of the High Court in Pearce v. The Queen (1998) 72 ALJR 146, with particular regard that individual sentences reflect the individual crimes. 34 It seems to me that the sentences, except for that on count four, and the findings of special circumstances, having had regard to the matters to which I have referred, should be maintained, although it will be necessary to interfere with his Honour's decision to cumulate in the way in which he did to reflect the necessary variation by reason of the quashing of the conviction on count four. 35 For my part, I am of the view that having regard to the principle of totality and to the particular sentences necessary on each count, cumulation on the sentence passed on count five, would meet the exigencies so that the existing sentences should remain undisturbed but on count three, in lieu of the commencement date of the non-parole period to which his Honour referred, that period should commence on 13 May 2000, ie., after the expiry of the sentence on count five, and expire on 12 May 2003. 36 The sentence itself should expire on 12 May 2005. That would mean that the earliest release date would be 12 May 2003. Such a result would make it unnecessary to consider further the other criticisms raised in the applicant's written submissions. 37 The orders, therefore, I would propose are, in regard to the conviction on count four, allow the extension of time to appeal, allow the appeal, quash the conviction and sentence and direct an acquittal. 38 As to the application for leave to appeal against sentence, I would allow leave to appeal against sentence and allow the appeal to the extent that the sentence on count three should be directed as cumulative upon the sentence passed on count five. That sentence would now be expressed in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999 and should be expressed as a sentence of five years imprisonment with a non-parole term of three years to commence on 13 May 2000 with a non-parole period to expire on 12 May, 2003. 39 PRIESTLEY, JA: I agree. 40 KIRBY, J: I also agree. 41 PRIESTLEY, JA: The orders of the court are those announced by Greg James, J.

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