REGINA v. SMITH [2000] NSWCCA 343

No. 60314 of 2000 CORAM: MASON, P. LEVINE, J. GREG JAMES, J.

1 MASON, P: I ask Greg James, J. to deliver the first judgment. 2 GREG JAMES, J: The Director of Public Prosecutions appeals to this court against the asserted inadequacy of a sentence imposed upon the respondent in the District Court of New South Wales on one charge of aggravated sexual intercourse without consent under s.61J of the Crimes Act 1900, an offence punishable by a maximum penalty of imprisonment for 20 years. 3 The notice of appeal to this court was signed by and purported to be on behalf of the Deputy Director of Public Prosecutions. The appeal is however brought by him under delegation and we were provided with evidence of his authorisation from the Director, thus there is compliance with the requirement of s.5D of the Criminal Appeal Act 1912. 4 On an appeal under s.5D of the Criminal Appeal Act 1912, the principles are well understood (see Everett v. The Queen (1994) 181 CLR 295 and Regina v. Allpass (1994) 72 A. Crim. R. 561). It is only necessary that I refer to certain aspects of them. 5 In its consideration of the appeal, the court will not only have regard to the question of whether there has been an error in principle calling for the court's intervention but also whether the court should stay its hand in the exercise of discretion (see The Queen v. Hayes (1987) 29 A. Crim. R. 452). In the event that the court is minded to intervene, it will have regard to the double jeopardy in which the respondent has been placed, in that the respondent is at risk of having the primary sentence overturned and being re-sentenced (see The Queen v. Warfield (1994) 34 NSWLR 2000). In addition, should the appeal be upheld, a lesser sentence will usually be imposed than that which could have been imposed below. Indeed, some of the authorities suggest that the appropriate sentence to be substituted would be the lowest sentence that might have been available at first instance (see The Queen v. Kalache [2000] NSWCCA 2). 6 In the present matter, the Crown asserts two errors on the part of the learned sentencing judge. The first, that in all the circumstances the sentence was manifestly inadequate, the second, that the sentencing judge erroneously backdated the sentence to the date of the respondent's arrest on 29 April 1999. That latter submission is made on the basis that the respondent was that day also arrested for other offences and sentences had been passed on him by a magistrate in respect of those unrelated offences to commence that day so that the respondent was not in custody from that day solely for the offence in question. 7 In respect of the aggravated sexual assault charge, the learned trial judge passed a head sentence of three years and six months with a non-parole period of 20 months, to commence on 29 April 1999, the other sentences to which I have referred passed by the learned magistrate were entirely concurrent. It is argued that the sentence should not have backdated to that date since that is to deprive the magistrate's sentences of any real significance, although it is conceded that the matter was a matter for the discretion of the learned trial judge. 8 Mr. Game of Senior Counsel on behalf of the respondent has conceded that there is a dearth of adequate reasoning expressed in the trial judge's remarks on sentence to show the basis upon which the trial judge backdated the sentence and in that sense there at least exists the sort of procedural error identified by the High Court in The Queen v. Fleming (1998) 158 ALR 379 but it is submitted by Mr. Game and conceded also by the learned Crown Prosecutor that there was a basis for a discretion to be exercised by the trial judge to so backdate on sentencing. 9 In those circumstances, for my part I would not intervene for the asserted error in the result on that basis. However, when one comes to examine the asserted inadequacy of the sentence passed by the learned trial judge for the offence of sexual assault, the circumstances seem to me different. 10 The learned trial judge found, in accordance with a statement of facts tendered to him by consent, that at a time when the complainant was some 11 years old, she went to stay at Christmas in a family home at which her cousin, the offender, was also present. When she was asleep in her bedroom, the offender came into the bedroom, shut the door, removed his track pants and her pyjama top and bottom, lay on top of her and had penile vaginal intercourse with her against her will. In consequence of that intercourse, she became pregnant and gave birth to a child. It was quite clear in all the circumstances that that child was the child of the offender. 11 His Honour quite properly adverted to the Crown's contention that the legislature had recognised the seriousness of sexual molestation of children by adults by providing for the increased penalties for such offences when the victims are under 16 years of age. His Honour referred to the necessity to impose a heavy penalty. He referred to the aggravating circumstance of the offender taking advantage of the family context in the home of the victim's grandparent. His Honour did not find that breach of trust, which would have existed had the offender been in a position of actual authority over the victim. However, his Honour did refer to the circumstance that the family relationship had operated to prevent the victim from complaining or notifying what the offender had done. His Honour inferred that the victim would suffer psychological harm. His Honour has expressed findings which are in accordance with the authorities and which plainly show the serious gravity of an offence of this kind. 12 His Honour gave to the offender the benefit of the plea of guilty and the benefit of a finding of remorse and contrition. In particular, his Honour made reference to the utilitarian effect of the offender's plea and the saving of the young child from the trauma and embarrassment of court proceedings. 13 In Hartikainen v. The Queen (CCA unreported 8 June 1993), Gleeson, CJ. said at 3:- "In my view, the Crown is correct when it says that his Honour failed to pay due regard to the objective seriousness of the facts of the case. It was pointed out by his Honour in his remarks on sentence that the sexual intercourse was not accompanied by additional violence of the kind that is sometimes encountered in cases of rape. However, non-consensual sexual intercourse is itself an extreme form of violence and one the community expects will be taken very seriously by the courts." 14 In this case, his Honour has adverted to the very matters to which the court had regard in Hartikainen (supra). The question remains however whether the sentence actually imposed reflects his Honour's appreciation in the upshot of his sentencing task of those factors. 15 His Honour turned to the facts personal to the prisoner. At the time the offender came forward for sentence he was 27 years of age. He had had a shiftless and itinerant existence working on farms. He had had a significant problem with alcohol and his Honour held that that had been a significant "issue as to his offending". He had sought help for this problem. The prisoner has been assessed by psychologists. His drug and alcohol problems had been identified but at that time there was no reference to a matter of which this court was apprised in evidence today for the first time, of his psychological problems to which I will later refer. His family circumstances were dysfunctional. He did however enjoy for some time the assistance of an elderly couple who supported him. He has had a number of relationships but those relationships have been terminated and we are informed today that his latest relationship has also been terminated. His Honour referred to the offender's prior record including offences for matters of break, enter and steal, assault and other entries. His Honour noted however that this sexual assault was the first offence of this kind which a court had to take into consideration. 16 In embarking on the intuitive synthesis required of a sentencing judge having had regard to the objective circumstances of the offence, to the policy matters to which a sentencing judge must have regard and the personal circumstances of the offender, his Honour gave weight to the particular vulnerability of children in the family situation, to the particular brutality of sexual assaults on a young child, particularly involving full penile intercourse producing a pregnancy on a young girl of that age. His Honour was of the view that a deterrent sentence was called for, embodying elements of both personal and general deterrents. 17 His Honour had regard to s.5(2) of the Sentencing Act 1989 in relation to the proportions of the sentence. However, it becomes apparent when one examines the sentence passed by his Honour that he in fact was dealing with the application of that Act's successor, that is the Crimes (Sentencing Procedure) Act 1999. His Honour applied the provisions of the former Act and found special circumstances such as to permit the variation of the proportions. His Honour made orders that the prisoner be released to a supervised parole after serving the non-parole period and orders that the prisoner accept the supervision of the Probation and Parole Service. 18 On behalf of the prisoner, both on appeal and on the exercise of the court's intervention to intervene, there have been filed three affidavits. The affidavit of the prisoner deposes to circumstances in which he has been detained, in which he has been subjected to and at risk of serious physical violence. One can accept from that material that the effect of the sentence, or at least the custodial portion of it, on the prisoner is more onerous than that on prisoners sentenced for other crimes. 19 In addition, there is provided to us a psychiatric report which indicates that the prisoner has been suffering since the age of 18 from auditory hallucinations and some depression. 20 In addition to that report, we have been provided with a report from Dr. Parmegiani dated 25 August 2000 which examines the psychiatric condition of the respondent in greater detail. He is diagnosed by the psychiatrist as suffering from schizo-effective disorder. It is apparent that that schizo-effective disorder may have underlain his antisocial and shiftless history. The psychiatric condition may well underlie the alcohol and drug problems the prisoner has experienced. He will need to remain under psychiatric care, according to the psychiatrist. 21 The submission is put that the psychiatric illness is relevant both to the subjective circumstances of the offender on sentence and also to the discretion but it is particularly put that although the psychiatric condition does not bear directly on the commission of the offence, it is a matter that should be taken into account as requiring a longer than usual parole period for supervision in the sentence (see The Queen v. Letteri (CCA, unreported 18 March 1992). 22 Reference is also made to the more onerous conditions of custody as suggesting that a shorter custodial period than might otherwise be the case would be appropriate. 23 In offences such as this, what has been said by this court on numerous occasions concerning the offence being an offence of severe violence, even if not accompanied by circumstances of other brutality and threats must always be borne in mind. In my view, the trial judge has averted to the relevant considerations but he has failed to translate those considerations into the sentence that he imposed. 24 There is no particular range or tariff or precisely corresponding comparable for any one case of this kind. Cases such as The Queen v. PVH (CCA, unreported 2 May 1996); The Queen v. Morrow [1999] NSWCCA 64; The Queen v. May [1999] NSWCCA 40 and Hartikainen (supra), to which I have referred illustrate the diversity of matters that may need to be considered and which may produce different penalties. It is necessary, however, on an appeal such as this to evaluate each case on its own facts and then to examine the sentence passed. It is the function and duty of this court on an appeal under s.5D, absent some matter occasioning the exercise of the discretion, if the court is of the view that the sentence is manifestly inadequate, to intervene insofar as is necessary to correct an error of general principle. Such an error exists where the sentence is so far outside the permissible range of the exercise of a proper discretion as to show error of principle (see Griffiths v. The Queen (1997) 137 CLR 293 and Everett (supra). 25 In this case I have concluded that the sentence imposed by the learned sentencing judge was manifestly inadequate. As far as the exercise of discretion is concerned, I am of the view that this sentence, having regard to the totality of circumstances, so differs from that which ought to have been imposed that I would not for myself consider that the court should stay its hand in the exercise of discretion. I am of the view however that we should particularly have regard to the materials to which I have referred provided to the court on this appeal concerning the circumstances in which the respondent is presently detained and his psychiatric condition, and conclude that the sentence that should be passed should not only reflect those matters, the double jeopardy reduction effect to which I have referred, but also in accordance with the recent decision of this court in Regina v. Thomson & Houlton [2000] NSWCCA 309 there should be a discount for the plea of guilty in the circumstances of some 20%. 26 I have concluded that an appropriate sentence would be a total sentence to date from 29 April 1999 of four years six months with a non-parole period of 27 months to date from that day. That non-parole period would expire on 28 July 2001. Otherwise, I would confirm the orders made by the sentencing judge concerning supervised parole and the directions that should be given in respect of that supervision by the Probation and Parole office. In accordance with s.48 of the Crimes (Sentencing Procedure) Act 1999, I would specify 28 July 2001 as the earliest day on which it appears that the respondent will become entitled to release from custody or eligible to be released on parole. Those sentences should be concurrent with the sentences that had been passed upon the respondent for those other crimes to which I have referred as dated to commence from 29 April 1999. 27 MASON, P: I agree. 28 LEVINE, J: I agree. 29 MASON, P: The orders will be as indicated by Greg James, J.

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