2 MAY 2005
REGINA v IAN FRANCIS MCQUEENEY
Judgment
1 GROVE J: I agree with Latham J.
2 HOWIE J: I agree with Latham J.
3 LATHAM J: The applicant seeks leave to appeal against a sentence imposed by Judge Neild at Gosford District Court in respect of one count of attempted sexual intercourse with a child under 10 pursuant to s 66B of the Crimes Act. That offence carries a maximum penalty of 25 years imprisonment. The applicant requested that two further offences of aggravated indecent assault pursuant to s 61M(2) be taken into account on a Form 1. Each of those offences carry a maximum penalty of 10 years imprisonment.
4 The applicant pleaded guilty on 11 March 2004 at the District Court to an indictment containing two counts, count one being the offence of attempt sexual intercourse, count two being an offence of aggravated indecent assault. The applicant requested that a further offence of aggravated indecent assault and an offence of aggravated act of indecency be taken into account on a Form 1 when being sentenced for the aggravated indecent assault. The offence of attempt sexual intercourse and the further offences taken into account on the Form 1 in respect of that offence concerned a complainant JB aged 9. The aggravated indecent assault on indictment and the further offences on the Form 1 in relation to that offence concerned complainant JW also aged 9.
5 On 25th June 2004 his Honour imposed a sentence of 4 years imprisonment with a non-parole period of 3 years to date from 2nd September 2003 in respect of the aggravated indecent assault offence (count 2 on the indictment). His Honour then imposed a sentence of 10 years imprisonment with a non-parole period of 7 years to date from 2nd March 2005 in respect of the attempt sexual intercourse offence (count 1 on the indictment). The effective head sentence was thus one of 11 ½ years with a non-parole period of 8 1/2 years.
6 The applicant maintains that the objective circumstances of the offence of attempted sexual intercourse do not warrant a sentence of 10 years imprisonment and that the partial accumulation of that sentence upon the sentence for the aggravated indecent assault has resulted in an effective sentence which is manifestly excessive in all the circumstances.
7 In that respect there is no specific challenge made to the sentence imposed for the aggravated indecent assault offence save for the following alleged error, that is that his Honour erred in treating the applicant's prior criminal convictions for offences of a sexual nature against children as an aggravating feature of the offences. However, as I understand the applicant's submissions, the asserted error has led his Honour to impose a sentence in excess of that warranted by law in respect of the attempt sexual intercourse offence, whilst not affecting the sentence passed in respect of the offence of aggravated indecent assault in the same manner.
8 The facts giving rise to the offences are summarised in the course of the Crown's submissions on this appeal. On 27th May 2003 the applicant commenced employment as a seasonal fruit picker on a farm at Somersby owned by the family of JW and JB both of whom were 9 years old at the time and step brothers. The applicant was 62 years of age. He camped in his truck which was parked on the farm whilst carrying out various labouring jobs. Over a period of time he bought JB and JW gifts and took them on various outings. On one occasions between 27th May and 17th August 2003 both JW and JB spent the night with the applicant in his truck. The applicant slept between the boys on a mattress in the truck. As JB was trying to go to sleep the applicant was holding JW by the shoulders whilst thrusting the front of his body on the back of JW's body. JW had his clothes on at the time (From 1 offence re count 1). Later during that evening JW was awoken by the applicant and found his underpants down around his ankles. The applicant was holding JW's shoulders whilst he was lying on his side. The applicant attempted to insert his penis into JW's anus whilst thrusting the front of his body on the back of JW's body. It was this latter incident which gave rise to count 1 on the indictment, the act of attempted sexual intercourse with a child under 10.
9 On a separate occasion between 27 May and 17th August 203 the applicant travelled with JB to Newcastle. In the course of the journey the applicant placed his hand on the inside of JB's boxer shorts and masturbated his penis for approximately 10 minutes. This activity was the subject of count 2 on the Indictment being the aggravated indecent assault offence.
10 On a further occasion between the 27th May and 16th August 2003 the applicant incited JB to touch the applicant's penis through the unlined pocket of the applicant's shorts (Form 1 offence re count 2).
11 On 16th August 2003 the applicant left the property following a confrontation with the complainants' family. On 2nd September 2003 the applicant attended Leeton police station and participated in an interview wherein he admitted that on an occasion when the complainants stayed overnight in the back of his truck he had placed his hand inside JW's pants and touched his penis and that he had also placed his hand inside JB's pants and touched his penis. These incidents also found expression on the Form 1 documents.
12 It is convenient to deal firstly with the applicant's contention that his Honour erred in treating the applicant's prior criminal record as an aggravating feature of the offences. In the course of his Honour's remarks on sentence his Honour deals sequentially with the offender' age, his background and upbringing, his education and employment, his marital status, his character and the offences themselves. Of particular relevance to the applicant's complaint on this appeal are the remarks appearing under the heading "the offender's character" and "the offences themselves". In respect of the offender's character his Honour canvassed at some length the applicant's criminal history in Tasmania, Queensland, Victoria and New South Wales. His Honour noted that the applicant had been dealt with for 40 offences in Tasmania, 14 in New South Wales, 3 in Queensland and 2 in Victoria. The following passage appears from page 6 of the remarks on sentence:
"Of the 40 offences dealt with in Tasmania, 2 were indecent practice between male persons dealt with on 22 August 1958 when the offender was 17 years and 7 months of age. Of the 14 offences dealt with in New South Wales, 1 was indecent assault on a male person committed during August 1969 when the offender was aged 28 years, 7 months, 3 were indecent assault on a male person and 1 was assault upon a male person with intent to commit buggery committed during June 1973 when the offender was aged 32 years and 5 months. Of the 3 offences dealt with in Queensland, 1 was aggravated assault on a child under the age of 17 years committed on 9th June 1988 when the offender was aged 47 years and 5 months. Of the 2 offences dealt with in Victoria both were indecent assault dealt with on 12th January 1998 when the offender was aged 57 years."
13 There was material before his Honour on sentence which established that, of these convictions, those recorded in New South Wales and Queensland concerned sexual assaults upon boys between the ages of 12 and 15 years. Moreover, in relation to the New South Wales offences there was an alarming similarity between the commission of those offences and the offences with which his Honour was dealing. The prior offences all occurred in the rear of the applicant's truck after he had befriended the relevant boys and taken them to various locations in the course of his travels.
14 It was in this context that his Honour came to deal with the objective gravity of the offences. His Honour listed the aggravating features of the offences at page 7 of his remarks on sentence. In particular his Honour referred to the fact that the offences were planned, the fact that the offences involved an abuse of trust in that the boys were in the care of the applicant at the relevant time and that the applicant had convictions "for offences of sexual abuse of children". His Honour then went on to refer to a number of mitigating factors.
15 The applicant's complaint on this ground assumes that his Honour was referring to those aggravating and mitigating factors set out under s 21A of the Crimes (Sentencing Procedure) Act, although his Honour does not expressly refer to that provision at this point in his remarks. Some discussion in relation to the aggravating and mitigating features appears in the course of submissions by the applicant's then legal representative and the Crown prosecutor on 16th June 2004. It was the applicant's then legal representative who took his Honour to s 21 A in the following terms:
"It is clear of course that the aggravating factors referred to under s 21A are virtually in abundance against him, being the previous convictions plus these further matters, beyond 1973 and even continuing until relatively recent times."
16 Shortly thereafter the applicant's legal representative refers his Honour to s 21A (d) (g) (d) and (l). In response to these submissions, the Crown prosecutor also refers to the aggravating factor (d) as one available to his Honour. The Crown prosecutor also adopts the submissions of the applicant's legal representative with respect to (g), (k) and (n). Fortunately, the Crown prosecutor acknowledges that the aggravating factor (l) is one already encompassed by the ingredients of the offence.
17 It is trite to observe that "the antecedent criminal history of an offender is a factor, which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight to lead to the imposition of a penalty which is disproportionate to the gravity of the … offence. …The antecedent criminal history is relevant however to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." Veen v The Queen [No 2] (1988) 164 CLR 465 at 477.
18 The above statement of the Common Law is one which is preserved for the purposes of s 21A (2) (d): see R v Wickham [2004] NSW CCA 193, R v Johnson [2004] NSW CCA 76 and R v Shankley [2003] NSW CCA 253. It is therefore strictly incorrect for a sentencing Judge to refer to an offender's criminal history as an aggravating feature of the offence for the purposes of s 21A of the Crimes (Sentencing Procedure) Act. It would appear that his Honour has fallen foul of that principle. It was perhaps understandable in circumstances where his Honour was inadvertently led into error by both the applicant's legal representative and the Crown prosecutor. However it does not follow that the sentence imposed by his Honour for the offence of attempt sexual intercourse is disproportionate to the gravity of the offence, given that the antecedent criminal history considerably heightened the significance of retribution, deterrence and the protection of society in the formulation of an appropriate penalty.
19 The applicant's long history of recidivism, demonstrating as it does a "dangerous propensity", called for the imposition of a penalty in excess of that which may have seemed appropriate in the absence of the Veen circumstances. I am not persuaded that if there was error of the kind identified by the applicant, it resulted in a sentence of greater severity than was in any event warranted by the need to reflect the particular relevance of the applicant's antecedent criminal history.
20 I turn to the ground of appeal claiming that the sentence was manifestly excessive. As noted above no issue is taken with the sentence of 4 years imprisonment imposed in respect of the aggravated indecent assault offence. The principal thrust of the applicant's submission on this ground is that the sentencing Judge commenced at a 13 year starting point for the offence of attempt sexual intercourse of a child under 10, given the discount of 25% allowed for the plea of guilty. The applicant points to the paucity of examples of sentences imposed under s 66B of the Crimes Act in recent years and seeks to call in aid the statistics available in relation to offences under s 66A of the Crimes Act. The applicant argues that a 10 year sentence for an offence under s 66A is "extremely rare" and cites a number of specific decisions of this Court wherein offenders convicted of completed acts of sexual intercourse of children under 10 received significantly lesser sentences for offences of significantly greater objective gravity.
21 As to this analysis by the applicant, a number of considerations render it of dubious assistance. The decisions of Hollis [2002] NSW CCA 306, Booker, unreported NSW CCA 21st February 1996, Campbell [2001] NSW CCA 89, CDH [2002] NSW CCA 103 and Lupton [2003] NSW CCA 200 were all instances of sexual intercourse with a child under 10 at a time when that offence carried a maximum penalty of 20 years imprisonment. The decisions of Selsby [2004] NSW CCA 381 and Booker were Crown appeals from which little guidance can be obtained given the principle of double jeopardy which applied in each of those cases. Moreover, the range of sexual activity encompassed by the definition of sexual intercourse for the purposes of all of these cases renders any direct comparison with the instant matter inappropriate. The decisions of Selby, Campbell, CDH and LTP related to various acts of sexual intercourse including fellatio, cunnilingus and digital penetration of a female. This Court in Davis [1999] NSW CCA 15 drew attention to the decision of the High Court in Ibbs v The Queen (1987) 163 CLR 447 in the following terms:
"In Ibbs v The Queen the High Court rejected the proposition that each kind of sexual penetration as defined in the section there under consideration was to be regarded as neither more nor les heinous than another. The Court said that such a proposition cannot be accepted. It appears to me that any other view would beggar common sense and that penal/vaginal penetration of a child is significantly more serious than many of the other forms of conduct encompassed within s 66A."
22 Moreover, many of the decisions referred to by the applicant's Counsel related to sexual offences which might well be regarded as stale, thereby affecting the length of the ultimate sentences imposed upon the offenders. By way of contrast, the applicant was being sentenced for relatively recent offences, of which one was an attempt of the more serious form of conduct within the definition of sexual intercourse for the purposes of s 66B.
23 The applicant's appeal to statistics and to the sentences imposed in a number of other cases coming before this Court seeks to avoid the very exercise with which his Honour was engaged in the Court below, that is, an appraisal of the criminality of this applicant.
24 The applicant concedes that the offences were serious in that they involved two separate complainants and that a degree of premeditation and planning was evident in the commission of the offences. Nor is any objection taken to his Honour's assessment of the prospects of the applicant's rehabilitation being somewhat dim.
25 At the end of the day, his Honour was dealing with the applicant for an attempt rather than the substantive offence. The approach to sentencing for an attempted substantive offence was expressed by this Court in Taouk [1992] A Crim R 387 as follows:
"There is clearly an interrelationship between the seriousness of the intended consequences and the real prospects of having achieved them and that relationship has to be weighed in each case in the light of all the circumstances."
26 In those circumstances his Honour's evaluation of the objective gravity of the offence required his Honour to consider that the substantive offence was not completed and the prospect that the attempt, if not interrupted, would have succeeded. On the facts before him his Honour was entitled to conclude that the substantive offence may well have succeeded but for the fact that the complainant awoke. The applicant had progressed a considerable way towards actual penetration. The boy's underwear had been removed and the applicant was holding the boy by the shoulders. The applicant was actively engaged in the attempt. Given these features of the offence and the gravity of the offence which was attempted, I am not persuaded that his Honour imposed a sentence in respect of this offence which was outside the range of his sentencing discretion. It may well be regarded as a sentence towards the top of the range, but that is insufficient to attract the intervention of this Court.
27 There remains the question whether the sentence imposed upon the applicant following the partial accumulation of the sentence for the attempt sexual intercourse offence upon the sentence for the aggravated indecent assault is manifestly excessive in all the circumstances. Given the aggravation of each of the two offences on indictment by further offences on a Form 1, the totality of the applicant's criminality was of a significant order. The applicant concedes that some accumulation was necessary in order to reflect the commission of offences upon two separate complainants, but argues that the accumulation of the sentences to the extent of 18 months has resulted in an effective head sentence which was manifestly excessive.
28 I am persuaded that there is some merit in the applicant's proposition. The applicant's criminality is represented by the commission of 6 offences against two separate complainants over a period of some three months. This was a relatively short period of offending when compared with cases of familial sexual abuse, often extending over years. In my opinion an accumulation to the extent of six months is sufficient to account for the applicant's abuse of more than one victim, particularly in circumstance where the offences against JW were of a lesser order than those against JB. There being no ground of appeal relating to the proportion between the head sentence and non-parole period, I would not disturb that aspect of the sentences imposed on each offence.
29 Accordingly, I would propose the following orders:-