REGINA v PFC

Appeal 6This is an appeal by the Director of Public Prosecutions pursuant to s5D of the Criminal Appeal Act 1912 against the sentence imposed by his Honour Norrish DCJ at the Sydney District Court on 21 December 2009. 7The grounds of appeal are as follows: " Ground 1: His honour erred in failing to order an effective degree of partial accumulation, thus resulting in an overall sentence that fails to adequately reflect the totality of the respondent's criminality. Ground 2: His Honour failed to properly assess the objective seriousness of the pervert the course of justice offences and erred in taking into account that the pervert the course of justice offences did not ultimately result in any miscarriage of justice. Ground 3: His Honour erred in imposing an effective total term and effective non-parole period which were manifestly inadequate." Factual background 8The respondent lived either at Wingham, Taree or Pampoolah in the Manning River area between 1997 and the mid 2000's. He was operating some form of computer business in those locations. 9The first two complainants, DM and CB, were persons under the age of 16 contemporary with the respondent's son. It would appear that the respondent met these two young men either through his son or through associates of his son. The Crown case was that these two young men were groomed in various ways by the respondent with trips, excursions on a jet-ski and/or cash and accommodation and exposure to pornography on his computer. Both victims were either dysfunctional or from dysfunctional family backgrounds, even before they me the respondent. CB in particular was prone to anti-social behaviour before he came under the respondent's influence. 10When both these men gave evidence at trial, they were serving substantial sentences of imprisonment. DM had been convicted of a serious crime of violence. CB was serving a lengthy term of imprisonment for the crime of murder. 11The brothers B were known to the respondent through the respondent's connection to the Taree area. The respondent appears to have known the family generally from earlier contact with an older brother of the complainants. The Crown case in relation to these three complainants was that they became victims of sexual assault by the respondent grooming each of them individually and at separate times with either gifts or trips, excursions on a jet-ski, access to computers with child pornography and cash and treats. 12There was some dysfunctionality in the B family. The victims of the sexual assaults had lost their mother when they were quite young and it would seem that for a period of time from 2001 until 2006, the respondent had a mentoring role with each of the victims at various times. This was particularly true in relation to SB, who came into the respondent's care with the approval of the Department of Community Services. This gave rise to the circumstances of aggravation in the count 12 and 13 offences being committed while under the authority of the respondent. 13The respondent had a friendship with MH of a character somewhat similar to his friendship with the brothers B. MH was a contemporary of either DB and/or SB and was part of a group of young men in the Taree/Wingham area who knew the respondent and whom the respondent knew. 14The evidence at trial revealed that as early as 1997/1998 when the respondent's son was at high school associating with either DM and/or CB, the respondent was known in the Wingham area and possibly elsewhere in the Manning Valley as "Paedophile Pete". 15It would seem that at various times he was equally admired by some of the people with whom he associated, including the victims, and reviled by others by reason of his reputation. Part of the factual matrix was a matter concerning his attendance at a party to pick up his son, where CB and DM were present and a group of youths and perhaps young women attacked his car by throwing bottles at it and screaming abuse at him. 16As indicated on the indictment, not only were there sexual assault matters involving each of the complainants, but those complainants were protagonists or victims in respect of the offences brought pursuant to s319 Crimes Act 1900 (i.e. the intent to pervert the course of justice offences). 17A number of those offences related to the recording of statements as to the respondent's good character and lack of sexual intent towards the relevant maker of the statement. Some of these statements were used in proceedings relating to an alleged sexual assault and procuring a person for pornographic purposes which were referred to in the trial as the "Port Macquarie proceedings" or the "Hardcastle trial". 18Count 22 was concerned with the calling of evidence in relation to those proceedings. Count 15 was concerned with the recording of observations about the respondent's good character and lack of sexual intent for potential use in these or future proceedings. Two of the counts, contrary to s319, related to proceedings in the Taree Local Court where the respondent, on the Crown case, brought a false allegation against the father of a young boy that he knew, in the nature of a private prosecution for intimidation. One count concerned the calling of a witness to give false evidence, i.e. count 21. This count related to DB. Count 24 concerned an attempt to obtain false evidence from the complainant MH. 19Count 29, which was in fact the last count in time, was an allegation of attempting to get TB to make false statements for the benefit of the respondent in respect of the proceedings that he was on bail for at the time. 20No useful purpose would be served by setting out in detail the full circumstances of each count on which the respondent was convicted. It is, however, necessary to briefly summarise each particular offence. 21Count 1: DM was born in 1983. This count involved an aggravated indecent assault committed when DM stayed at the respondent's home one night in company with the respondent's son. DM woke up and found the respondent touching him on the penis. He was directed to the lounge room and there the respondent masturbated him. 22Count 2: The respondent drove the victim, in company with two other persons including his son, from Newcastle to Sydney. There was some playing of video games in an arcade and ultimately DM and the other two boys slept at the home of the respondent's mother. DM woke up during the night with the respondent performing oral sex upon him. 23Count 3: This offence occurred at a lookout tower outside Wingham. The respondent told DM that he wanted to take photographs of him for which purpose DM took off his clothes. The respondent pressed himself against the back of DM and tried to have intercourse with him with his clothes on. 24Count 4: This offence occurred when the respondent was driving DM from Newcastle to Taree. At a rest stop they got into the back seat where the respondent masturbated himself and kept trying (unsuccessfully) to put his penis into the anus of DM. Ultimately DM got back into the front seat and they drove off. 25Count 6: This offence involved both DM and CB speaking to the camera. They appear either to be saying lines that they have memorised or are reading from pieces of paper. DM says that he had been making up stories about the respondent and that anything he said about him being a paedophile was untrue. This video was tendered in the "Port Macquarie proceedings". 26Count 7: CB was born in 1982. This offence occurred when CB told the respondent that he was willing to have some pictures taken of him. CB was taken to the lookout and told to pose and to arouse himself. The respondent then took various photographs of him in suggestive poses and gave him money. 27Counts 12 - 15: SB was born in 1989. When he was in year 9 because of problems at home, he moved into the home of the respondent and came under his authority. In relation to count 12 when SB was asleep in the respondent's home, the respondent repeatedly sexually assaulted him by putting his penis in his anus. Count 13 also occurred when SB was living in the respondent's home. When he was asleep, the respondent came into the room and penetrated him in the anus with his penis. 28In relation to Count 14, the respondent used a video camera to record SB performing sexual acts with a carrot. These sexual acts included masturbation and placing the carrot in his anus. 29The Count 15 offence was a recording made in relation to the "Port Macquarie proceedings". SB was recorded stating that the respondent had not made sexual advances to him. SB said that he made this recording after threats had been made against him. 30Count 16: DB was born in 1987. He met the respondent through the respondent's nephew and was groomed by being given access to a computer at the respondent's home. On one of these occasions the respondent rubbed DB's crotch and played with his penis and then put DB's penis in his mouth. 31Count 17: This count involved anal intercourse, which occurred when the respondent had taken DB to an amusement arcade in Sydney. After attending a fast food restaurant, the respondent and DB went into the back of the car where the offence took place. 32Count 19: On this occasion the respondent drove DB to a lookout near Taree in the evening. After arriving at the lookout, the respondent asked DB to get into the back of the car and there was an act of penile penetration of his anus. 33Count 20: At the time of this offence, DB was 15. He had been jet skiing. After washing the jet ski down at the respondent's home, DB was taken to a bedroom where anal intercourse took place. 34Count 21: This count, which involved evidence being given at the Taree Local Court, involved the respondent persuading DB to falsely state that he had seen an incident when the father of another boy, TR, had used a motor vehicle to try to run over the respondent. DB gave evidence at court that he had seen such an incident. This evidence was false. 35Count 22: This count related to an attempt by the respondent to persuade DB to give evidence in the "Port Macquarie proceedings". DB gave evidence in those proceedings to the effect that he had seen SB and another male, MH, kissing. That evidence was untrue. 36Count 23: MH was born in 1990. He had met the respondent through another young person. The respondent had offered to take MH wherever he would like to go around the Taree area. In 2003 he was taken to the respondent's house where he was shown a number of pornographic images of young boys. The respondent persuaded him to go to the bathroom and take off his clothes and have a shower. When MH emerged from the shower, the respondent took hold of his penis and masturbated him. 37Count 24: This count relates to an attempt by the respondent to have MH give false evidence in the Taree Local Court. The respondent promised MH money to sign a statement which was not true. Ultimately MH did not give evidence in those proceedings. 38Count 25: TB was born in 1991. While at the respondent's home, the respondent persuaded him to take off his shorts and sucked his penis until he ejaculated. 39Count 26: When TB was 13 the respondent offered him money to visit his home. When he did so he was taken into a bedroom where anal intercourse occurred. 40Count 27: On this occasion TB was driven to the respondent's home with the offer of the purchase of McDonalds hamburgers. He played on a playstation at the respondent's home during the course of which the respondent sucked his penis until he ejaculated. 41Count 28: When TB was 14 he was walking to the Aquatic Centre at Taree when the respondent drove up behind him in his motor vehicle. By offering him some McDonald hamburgers, the respondent persuaded him to enter the motor vehicle and go to the respondent's home. While at the home he was shown a pornographic video during the course of which the respondent pulled down his pants and sucked his penis until he ejaculated. 42Count 29: This offence occurred in February 2009 when the respondent was on bail in relation to allegations made by DB and SB. The respondent approached TB in a supermarket and asked that he record a video saying that the respondent was a good man and that his brothers were liars. The respondent offered TB money to do this. The recording of the video did not take place. Remarks on sentence 43His Honour found that the allegations in Counts 1 - 11 overlapped and were "very much interrelated". He also found that the counts 12 to 29 overlapped, particularly when one had regard to the fact that three of the complainants were brothers. 44In terms of the objective seriousness of the offending, his Honour noted that condign punishment was called for where serious and repeated sexual assaults were perpetrated upon young persons. In this respect his Honour had regard to the comments of McClellan CJ at CL in R v Wicks [2005] NSWCCA 409 at [49]. His Honour also had regard to the differing types of intercourse and to the range of sentences prevalent at the time of their commission. 45In relation to the counts involving an intent to pervert the course of justice, his Honour had regard to the fact that these attempts were not successful and concluded that this reduced their objective seriousness. 46His Honour found that the respondent had a weak subjective case. He was born in 1953 and the first offences were committed when he was 44 - 45 years of age. The offending then continued over a significant period of time. He had been married with five children, although he and his wife separated in 1993. He had run an apparently successful computer business until he was taken into custody in 2006. 47His Honour noted that the respondent had convictions in the early 1970's for minor offences of false pretences. There was no offending between 1972 and 1999 when the respondent was convicted of having goods in custody, reasonably suspected of being stolen. He was placed on a good behaviour bond for 3 years from 12 December 2001. His Honour observed that a number of these offences had occurred whilst he was subject to that good behaviour bond. 48His Honour also noted that in the "Port Macquarie proceedings", the respondent had been convicted of inciting a person under 16 to commit an act of indecency and of procuring a person above the age of 14 years and under the age of 18 years for pornographic purposes. He had received a prison sentence of 18 months which concluded on 11 June 2008. This meant that at the time when the Count 29 offence occurred, he was on parole. 49His Honour concluded that the respondent's subjective case did not entitle him to any leniency either in relation to the sexual offences or in relation to the offences of acting with intent to pervert the course of justice. 50His Honour noted that in carrying out the sentencing process, he had to give "very close attention to what flowed from the High Court decision of Pearce v The Queen (1998) 194 CLR 610". His Honour took into account the need to apply the principles of proportionality and have regard to the totality of the criminality involved when fixing the individual sentences. His Honour also had regard to the need for accumulation, or partial accumulation, in relation to the individual sentences. 51In relation to the s319 offences, his Honour acknowledged the importance of protecting the integrity of the criminal justice system and that offences contrary to s319 struck at the heart of the justice system. 52In relation to special circumstances, his Honour said: "I have concluded that, essentially, the only true special circumstance that warrants an adjustment of the relationship of the non-parole period to the balance of the sentence is the cumulative effect, or partially cumulative effect, of the sentences which I will impose. Many of the sentences I will impose will not require the fixing of a non-parole period at all because of the structure of the sentences." (ROS 42) 53His Honour took into account that the respondent was in protection. This meant that his time in custody would involve greater hardship than that experienced by the general prison population. His Honour also noted that the respondent had been previously assaulted when in custody in relation to the "Port Macquarie proceedings". His Honour's conclusion was: "I accept that by being in protection for whatever reason the prisoner's circumstances will limit his opportunity to get access to particular facilities, including rehabilitation facilities, from time to time and perhaps even medical facilities from time to time but I cannot see any potential hardship even if it could be identified at this point as indicating some special circumstances such as to warrant an adjustment of the non-parole period or to substantially affect the appropriate sentence to be imposed." (ROS 47) 54His Honour concluded as follows: "I have to have regard to s3A Crimes (Sentencing Procedure) Act , but in sentencing the prisoner I also have to note that the sentences will be limited by the principles of proportionality and totality and these factors will restrain a sentencing court to some extent in imposing the sentences that are required to promote the purpose of punishment which is obviously implicit in all offences of this type. There can be no doubt, as the Crown and the defence concede, that terms of imprisonment are required for each offence and that the range of period of time over which the offences are committed and the fact that there are different complainants or victims involved in the offences committed at different times, sometimes in circumstances where the prisoner was subject to conditional liberty, must inevitably lead, given some of the comparative sentencing to which I have been referred to sentences of significance." (ROS 48) Appeal Ground 1: His Honour erred in failing to order an effective degree of partial accumulation, thus resulting in an overall sentence that failed to adequately reflect the totality of the respondent's criminality. Ground 3: His Honour erred in imposing an effective total term and effective non-parole period which were manifestly inadequate. 55It is appropriate to deal with these two grounds of appeal together since they raise the same issue. 56The Crown does not raise an issue at to the adequacy of the individual sentences imposed for each count or with the fact of partial accumulation. The essential complaint of the Crown is directed towards the extent of the accumulation. 57The Crown submits that in this case the imposition of completely concurrent sentences in some instances may be regarded as no sentence at all and thus demonstrates excessive leniency and a failure to reflect the totality of the criminality. In that regard the Crown refers to the fact that 23 offences were committed over a period of 12 years involving 6 victims all of who were juveniles at the time. Consideration 58The relevant principles are clear. In R v Hamid [2006] NSWCCA 302 at [134] Johnson J (with whom Hunt AJA and Latham J agreed) said: " 134 In R v Knight (2005) 155 A Crim R 252, the following was said, at 272 [112], concerning questions of accumulation, concurrence and totality: "It is necessary to fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence and totality. The total effective sentence must represent a proper period of incarceration for the totality of the criminality involved : R v AEM Snr at para 70; R v Kalache (2000) 111 A Crim R 152 at 184. The mechanism of making some sentences cumulative and others concurrent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at para 34. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest that multiple offences will be punished in the same way as one or two offences: R v Wheeler [2000] NSWCCA 34 at paras 36-37." 135 A paramount principle for the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct. This principle applies in all cases, including those where punishment is imposed for multiple offences: R v Weldon (2002) 136 A Crim R 55 at 62 [46]. ..." 59Similarly in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Howie J (with whom Adams and Price JJ agreed) said: "27 In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both. 28 This issue was most recently discussed in R v MMK [2006] NSWCCA 272 where the Court stated: "[11] One of the limiting principles that constrains a sentencing court in seeking to promote the purposes of punishment is the principle of proportionality. Another is the, not-unrelated, principle of totality and it is this principle that operated in the present case. It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v R (1988) 166 CLR 59 ; Pearce v R (1998) 194 CLR 610 and Johnson v R (2004) 78 ALJR 616." [12] In R v Holder (1983) 3 NSWLR 245, Street CJ described the principle as follows: (at 260) "... The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." ... That was a case where it was held to be appropriate to impose a sentence completely concurrent with sentences then being served by the offender even though the offence, for which sentence was imposed, was a completely separate and discrete act of serious criminality. 29 In the present case the Judge, having nominated the sentences for each offence, stated that she proposed to make them partially cumulative in order to achieve the overall sentence that she believed was appropriate. This was in effect a short hand way of indicating that her Honour thought that the totality of criminality encompassed by the three offences warranted a specific sentence that could only be achieved by a degree of cumulation between the three offences. There was nothing more that the Judge needed to say in order to explain why she was structuring the sentences as she did. 30 In my opinion this ground is not made out. Whether it was open to her Honour to impose partially cumulative sentences depends upon whether it was open to her to assess the totality of criminality of the three sentences as she did. ..." 60Applying those principles to the facts of this case makes it clear that these grounds of appeal have not been made out. 61His Honour was confronted with a difficult sentencing task. The sheer number and seriousness of the offences meant that some degree of concurrency and partial accumulation was inevitable. It also meant that his Honour was required to take into account that a number of the offences were interrelated. 62The effect of the Crown submissions, both orally and in writing, was that because in many cases the offences were separate and involved different victims, the sentences in respect of those offences could not be concurrent and should be at least partially cumulative. There is, however, no sentencing principle to that effect. What was made clear in Hamid and Cahyadi is that appropriate sentences are to be passed in respect of each offence but then the sentencing judge needs to apply the complementary principles of proportionality and totality in order to formulate a final sentence which is appropriate for the totality of the criminality. As was said by Street CJ in Holder to do otherwise "will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances". That is the sort of result which would be achieved if effect were given to the Crown's submissions in this case. To accumulate all of those offences which involved different complainants and different periods of time would produce a total sentence which was crushing. More importantly, it would produce a total sentence which did not adequately reflect the criminality involved. 63Once a sentencing judge has set individual sentences for each offence, the questions of accumulation and/or concurrence are discretionary matters. It is not a question of what another court or another judge might regard as appropriate, but whether correct principle has been applied in the instant case. As RS Hulme J observed in Qing An v Regina [2007] NSWCCA 53 at [195]: "195 ... The issue is what effective total non-parole period and sentence properly reflect the Appellant's criminality and other circumstances. The matter is one where there is no single correct answer and one upon which minds can readily and reasonably differ." The process followed by his Honour of setting discrete sentences for each offence and then determining the overall sentence so as to have regard to proportionality and totality was fully in accord with principle and authority. In any event, the total sentence passed was a not insignificant one. 64These grounds of appeal have not been made out. Ground 2: His Honour failed to properly assess the objective seriousness of the pervert the course of justice offences and erred in taking into account that the pervert the course of justice offences did not ultimately result in any miscarriage of justice. 65The Crown submits that the sentences passed in respect of some of the "intent to pervert the course of justice" offences were completely concurrent with other sentences and have to be regarded as no sentence at all. The Crown submits that this indicates excessive leniency in that the maximum sentence for offences contrary to s319 of imprisonment for 14 years was greater than the maximum sentence for any of the sexually related offences for which the respondent was also sentenced. 66The Crown also submits that his Honour made an error of principle when he took into account that the offences of "intent to pervert the course of justice" were ineffective as impacting on the objective seriousness of the offences. In that regard, the Crown relied upon the observation of Hall J (with whom McClellan CJ at CL and Hoeben J agreed) in R v Taylor [2007] NSWCCA 99 at [25]: "25 ... Additionally, the fact that the applicant's conduct was thwarted is also of no significance. As Badgery-Parker, J. stated in Regina v Taouk (1992) 65 A. Crim. R. 387 at 392 in the context of an act intended to pervert the course of justice, the fact that the act did not succeed or even was doomed to failure is, as his Honour said, "of far less significance than in the case of sentencing for an attempt to commit a substantive crime and the potential seriousness of the consequences is of much greater weight" Consideration 67The second submission of the Crown is undoubtedly correct and his Honour did err in taking into account on the question of objective seriousness, the fact that the acts intended to pervert the course of justice did not succeed. This, however, does not end the matter. 68Even though his Honour erred in taking that matter into account when assessing objective seriousness, the sentences imposed were still well within the range available and have not been challenged by the Crown. 69In relation to the Crown's first submission, this raises the same matters which were considered under Grounds of Appeal 1 and 3. In that regard the principles of totality and proportionality apply to "intent to pervert the course of justice offences" just as much as they do to other offences. As Hall J said in Taylor at [31]: "31 It was, as indicated earlier, essential that the applicant be sentenced for the distinct and separate offences. It was then necessary for the sentencing judge to ensure that the appropriate overall sentence reflected the criminality involved in the offences with the necessary consideration of concurrency or accumulation: Pearce v The Queen (1998) 194 CLR 610." 70This ground of appeal has not been made out. 71Accordingly, the order which I propose is that the Crown's appeal against sentence be dismissed. 72HALL J: I agree with Hoeben J.

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